Crystal Run Sand & Gravel, Inc. v. Milnor Construction Corp.

—In an action to recover damages for breach of contract, the defendants Milnor Construction Corp., Milton Novie, and United States Fidelity and Guaranty Company appeal from (1) a judgment of the Supreme Court, Orange County (Williams, J.H.O.), entered October 25, 2001, which, upon their default in appearing at trial, awarded the plaintiff damages in the total sum of $156,526.80, and (2) an order of the same court (Owen, J.), dated January 28, 2002, which, in effect, denied their motion to vacate their default. Ordered that the appeal from the judgment is dismissed, as no appeal lies from a judgment entered upon default (see CPLR 5511); and it is further, Ordered that the order is reversed, on the facts and as a matter of discretion, the motion is granted, and the judgment is vacated; and it is further, Ordered that the one bill of costs is awarded to the appellants. The Supreme Court improvidently exercised its discretion in denying the appellants’ motion to vacate their default. The appellants established that excusable law office failure was the cause of the default in appearing at the nonjury trial (see CPLR 2005; Burns v Casale, 276 AD2d 734; Parker v City of New York, 272 AD2d 310), and also demonstrated the existence of a meritorious defense to the action (see Incorporated Vil. of Saltaire v Zagata, 280 AD2d 547; Certified Fence Corp. v Felix Indus., 260 AD2d 338; Krohn v Felix Indus., 226 AD2d 506). Under the circumstances of this case, the motion should have been granted. Santucci, J.P., Feuerstein, Luciano and Schmidt, JJ., concur.