The following e-filed documents, listed by NYSCEF document number (Motion 005) 216, 217, 218, 219, 220, 221, 222, 223, 224, 225, 226, 227, 228, 229, 230, 231, 232, 233, 234, 235, 236, 237, 238, 239, 240, 241 were read on this motion to/for VACATE — DECISION/ORDER/JUDGMENT/AWARD. DECISION ORDER ON MOTION Upon the foregoing documents, it is ordered that plaintiffs’ order to show cause seeking to vacate the two Unopposed Summary Judgment Motion and Orders, signed by counsel on September 3, 2019 and received by the Court on September 10, 2019, which dismissed the instant action against defendants The Nash Engineering Co. and Atwood & Morrill Co., Inc., is decided below. Plaintiff seeks to vacate the two Unopposed Summary Judgment Motion and Orders which plaintiff’s counsel states was signed by them in error due to a law office failure. Plaintiff argues that there is a reasonable excuse for the inadvertent signing of the orders and that plaintiff has a meritorious claim. In opposition, the defendant The Nash Engineering Co. (hereinafter referred to as “defendant Nash”) argues that plaintiff failed to establish a meritorious claim in that plaintiff failed to identify such defendants as a source of his exposure to asbestos, but rather, plaintiff relies solely upon the deposition transcript of George Zachmann. According to defendant Nash, Mr. Zachmann’s deposition was taken as part of a separate asbestos action and cannot be used herein. Defendant Nash further argues that Mr. Zachmann was never listed as a fact witness. Moreover, defendant Nash avers that the instant order to show cause must be denied as it is untimely. Defendant Atwood & Morrill Co., Inc. join in defendant Nash’s opposition and adopt the same arguments. In order to vacate a default judgment or order pursuant to CPLR §5015(a)(1), a motion must be made within one year of service of a copy of the judgment with notice of entry and the moving party has the burden of demonstrating both: (1) a reasonable excuse for the default; and (2) a meritorious defense to the action. See Navarro v. A. Trenkman Estate, Inc., 279 AD2d 257, 258 (1st Dep’t 2001); Cedeno v. Wimbledon Building Corp., 207 AD2d 297, 297 (1st Dep’t 1994). Here, plaintiff established a reasonable excuse for the default in that, due to a law office failure, the two subject orders were placed in the wrong pile of paperwork by a paralegal, and thus, inadvertently signed by plaintiff’s counsel. Notably, defendant Nash’s opposition is silent as to the issue of law office failure and any potential prejudice. The Appellate Division, First Department, has held that law office failure could constitute a reasonable excuse for a default. See Knight v. Acacia Network, Inc., 177 AD3d 499, 499 (1st Dep’t 2019). It is undisputed that plaintiff did not intend to voluntarily dismiss the subject defendants from the instant action. It is well settled that there is a “strong public policy of this State to dispose of cases on their merits”. Chelli v. Kelly Group, P.C., 63 AD3d 632, 633 (1st Dep’t, 2009). The Chelli court found that inadvertent law office failure, which did not prejudice the opposing side, constitutes a reasonable excuse for the default. See id. Thus, plaintiff has established a reasonable excuse. Plaintiff has also established a meritorious claim in that plaintiff’s deposition testimony revealed that, while serving in the US Navy, he boarded the USS LaSalle in August 1963 where he cleaned up insulation left behind during the installation of new equipment. Plaintiff testified that as he cleaned up such insulation, it created dust which he inhaled and exposed him to asbestos. In support of the instant motion, plaintiff proffers, inter alia, the deposition testimony of George Zachmann, a shipyard worker aboard the USS LaSalle, who testified that the subject defendants manufactured equipment that was on board the ship where plaintiff was exposed to asbestos. Plaintiff further proffers Naval records pertaining to the USS LaSalle which establish the same. Thus, plaintiff has established a meritorious claim. In opposition, the subject defendants allege that plaintiff has failed to establish a meritorious defense in that plaintiff relies solely on the deposition of Mr. Zachmann to create a nexus between defendants’ products and plaintiff’s asbestos exposure. However, such argument fails. The Appellate Division, First Department has held that “evidence otherwise excludable at trial may be considered in…a motion for summary judgment as long as it does not become the sole basis for the court’s determination”. Oken v. A.C.&S., 7 AD3d 285, 285 (1st Dep’t 2004). Here, plaintiff relies on Mr. Zachmann’s deposition transcript as well as records pertaining to the USS LaSalle which reference the subject defendants. See Notice of Motion, Exhs. K and L. Thus, Mr. Zachmann’s deposition transcript is not the sole evidence relied upon by the Court. The subject defendants further argue that plaintiff’s motion is time-barred pursuant to CPLR §5015(a). According to defendants, the instant motion to vacate was filed more than one year from the date that the two orders were entered. The Court notes that CPLR §5015(a)(1), specifically states that a motion must be made within one year of service of a copy of the judgment with notice of entry. However, no such notice of entry was filed. The date of September 16, 2019 relied upon by defendants is the date the two orders were electronically filed. As no notice of entry was ever filed by defendants, the instant order to show cause is timely. As plaintiff has established both a reasonable excuse and a meritorious defense, the instant timely order to show cause to vacate the two orders is granted. Accordingly, it is ORDERED that plaintiff’s order to show cause to vacate the two Unopposed Summary Judgment Motion and Orders, signed by counsel on September 3, 2019 and received by the Court on September 10, 2019 is granted; and it is further ORDERED that defendants The Nash Engineering Co. and Atwood & Morrill Co., Inc. are restored as defendants in this action; and it is further ORDERED that, within 30 days of entry, plaintiff shall serve upon all parties a copy of this decision and order, together with notice of entry. This constitutes the Decision and Order of the Court. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION X GRANTED DENIED GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE Dated: March 15, 2021
