Knight v. Acacia Network, Inc.

Knight v Acacia Network, Inc. (2019 NY Slip Op 08365)

Knight v Acacia Network, Inc.

2019 NY Slip Op 08365

Decided on November 19, 2019

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 19, 2019
Manzanet-Daniels, J.P., Tom, Kapnick, Gesmer, Singh, JJ.

305657/14 10370A 83859/16 10370

[*1] Kimberly Knight, Plaintiff-Appellant,

v

Acacia Network, Inc., et. al., Defendants-Respondents.



Acacia Network, Inc., et. al., Third-Party Plaintiffs,

v

Platinum Care, Inc., Third-Party Defendant.

Peña & Kahn, PLLC, Bronx (Jonathan O. Michaels of counsel), for appellant.

Law Office of Daniel J. McCarey, LLC, New York (Daniel J. McCarey of counsel), for Acacia Network, Inc., Stadium Center LLC and Deegan Motel Corp., respondents.

Gallo Vitucci Klar, LLP, Woodbury (Jacqueline S. Kim of counsel), for Distinctive Maintenance Company, Inc., respondent.

Law Office of Tromello & Fishman, Tarrytown (Christine D. Hanlon of counsel), for Platinum Care Inc., respondent.

Order, Supreme Court, Bronx County (Julia I. Rodriguez, J.), entered July 30, 2018, which, to the extent appealed from as limited by the briefs, denied plaintiff's motion pursuant to CPLR 5015(a) to vacate a prior order entered on her default insofar as it granted defendants' motions for summary judgment dismissing the complaint as against them, unanimously reversed, on the law and the facts, without costs, the motion granted, and the complaint reinstated. Appeal from the Order, same court and Justice, entered on or about October 10, 2018, which denied plaintiff's motion to reargue and renew her motion to vacate her default, unanimously dismissed, without costs, as academic.

We disagree with the motion court that plaintiff failed to demonstrate both a reasonable excuse for her default and a meritorious cause of action (see Mutual Mar. Off., Inc. v Joy Constr. Corp., 39 AD3d 417, 419 [1st Dept 2007]). We find that the law office failure that resulted in [*2]plaintiff's two-week delay in filing opposition to defendants' motions was not willful and that a meritorious cause of action as to both incidents has been set forth (see id.).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 19, 2019

DEPUTY CLERK