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JINQUAN CHEN, plf-app, v. STYLE MANAGEMENT CO., INC, def-res

13-194. JINQUAN CHEN, plf-app, v. STYLE MANAGEMENT CO., INC, def-res. — Order (Frank P. Nervo, J.), entered February 11, 2013, modified, without costs, plaintiff's motion is deemed one to vacate his default on the prior motion and, so considered, plaintiff's motion is granted to the extent of vacating his default and remanding the matter for a hearing in accordance with this decision.

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13-194. JINQUAN CHEN, plf-app, v. STYLE MANAGEMENT CO., INC, def-res. — Order (Frank P. Nervo, J.), entered February 11, 2013, modified, without costs, plaintiff’s motion is deemed one to vacate his default on the prior motion and, so considered, plaintiff’s motion is granted to the extent of vacating his default and remanding the matter for a hearing in accordance with this decision.

By its November 21, 2012 order, Civil Court granted defendant’s unopposed motion to vacate the consent judgment, a motion predicated solely upon defendant’s assertion that it timely complied with the payment provisions of the parties’ so-ordered settlement stipulation. Plaintiff’s motion to “renew or reargue” that order is properly deemed one to set aside his default in having failed to oppose defendant’s prior motion (see Matter of Garvin, 294 AD2d 185 [2002]). So viewed, plaintiff’s vacatur motion, expeditiously made, should have been granted upon his showing of a reasonable excuse for the default and a potentially meritorious opposition to the motion, viz., plaintiff’s nonreceipt of the settlement amount despite due demand. A hearing is warranted to resolve the sharp factual issue raised on this record concerning defendant’s tender of the settlement proceeds.

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