Kalaba v. Macy's, Inc.

Kalaba v Macy's, Inc. (2019 NY Slip Op 08367)

Kalaba v Macy's, Inc.

2019 NY Slip Op 08367

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
Friedman, J.P., Renwick, Richter, Mazzarelli, Oing, JJ.

10373 160667/17

[*1] Terezina Kalaba, et al., Plaintiffs-Respondents,

v

Macy's, Inc., Defendant-Respondent.

Lester Schwab Katz & Dwyer, LLP, New York (Daniel S. Kotler of counsel), for appellant.

Doyle & Broumand, LLP, Bronx (Michael B. Doyle of counsel), for respondents.

Order, Supreme Court, New York County (James Edward D'Auguste, J.), entered March 13, 2019, which, in this action for personal injuries, granted plaintiffs' motion to vacate their default in opposing defendant's motion to strike the complaint, unanimously affirmed, without costs.

The motion court providently exercised its discretion in granting plaintiffs' motion pursuant to CPLR 5015 to vacate their default in opposing defendant's motion. Plaintiffs demonstrated that they were unaware that their former counsel had failed to respond to defendant's initial discovery demands and to oppose the motion to strike the complaint (see Hamilton v National Amusements, Inc., 167 AD3d 431 [1st Dept 2018]). Furthermore, the injured plaintiff's affidavit set forth a potentially meritorious negligence claim at this stage of the proceedings and, given the absence of any prejudice to defendant, plaintiffs' claims should be resolved on the merits (see Yea Soon Chung v Mid Queens LP., 139 AD3d 490 [1st Dept 2016]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 19, 2019

DEPUTY CLERK