SANDRA PROWLEY, ESQ., plf-res, v. DEJAY LITHO, INC. AND TYLER RUBIN, def-app

13-385. SANDRA PROWLEY, ESQ., plf-res, v. DEJAY LITHO, INC. AND TYLER RUBIN, def-app — Order (David B. Cohen, J.), entered March 8, 2013, reversed, without costs, motion granted, default judgment vacated, and matter remanded for further proceedings.

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13-385. SANDRA PROWLEY, ESQ., plf-res, v. DEJAY LITHO, INC. AND TYLER RUBIN, def-app — Order (David B. Cohen, J.), entered March 8, 2013, reversed, without costs, motion granted, default judgment vacated, and matter remanded for further proceedings.

Considering the strong policy favoring resolution of cases on the merits (see Chevalier v. 368 E. 148th St. Assoc., LLC, 80 AD3d 411. 413-414 [2011]), we exercise our discretion to relieve defendants of their default in appearing on the initial, January 7, 2013 trial date. The defendants’ default does not appear to have been willful or deliberate, but rather the result of defense counsel’s misapprehension of the status of the case, fueled by the apparent pendency of a defense motion made returnable on January 18, 2013, as well as defense counsel’s failure to follow up with the court on his December 10, 2012 letter requesting a brief trial adjournment to accommodate his “longstanding” plans to travel overseas for a two-week period ending January 6, 2013. Under the particular circumstances of this case, the defendants’ isolated default is properly attributable to excusable law office failure (see Dellagatta v. McGillicuddy, 31 AD3d 549, 550 [2006]; Cannon v. Ireland’s Own, Inc., 21 AD3d 264 [2005]). Further, defendants established a meritorious defense to the action, the sufficiency of which was neither forcefully challenged by plaintiff below nor addressed in the order under review.

SANDRA PROWLEY, ESQ., plf-res, v. DEJAY LITHO, INC. AND TYLER RUBIN, def-app

13-385. SANDRA PROWLEY, ESQ., plf-res, v. DEJAY LITHO, INC. AND TYLER RUBIN, def-app — Order (David B. Cohen, J.), entered March 8, 2013, reversed, without costs, motion granted, default judgment vacated, and matter remanded for further proceedings.

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