2019 NY Slip Op 03465
N.Y. App. Div. 1st
2019

B & H Fla. Notes LLC v Ashkenazi

Appellate Division, First Department

May 2, 2019

2019 NY Slip Op 03465 [172 AD3d 433]

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, July 3, 2019

B and H Florida Notes LLC, Respondent, v Alexander Ashkenazi et al., Defendants, and Amit Louzon, Appellant.

McLaughlin & Stern, LLP, Great Neck (John M. Brickman of counsel), for appellant.

Marc E. Scollar, Staten Island, for respondent.

Order, Supreme Court, New York County (Judith N. McMahon, J.), entered March 6, 2018, which granted plaintiff‘s order to show cause to vacate the order dismissing the complaint, unanimously affirmed, without costs.

Plaintiff‘s allegations of law office failure, i.e., that plaintiff‘s counsel failed to appear for the rescheduled conference in that he inadvertently scheduled the wrong date, constituted a reasonable excuse for the default (see Dokmecian v ABN AMRO N. Am., 304 AD2d 445 [1st Dept 2003]). Plaintiff also demonstrated that he had a meritorious defense (see CPLR 5015 [a] [1]; Matter of Jones, 128 AD2d 403, 404 [1st Dept 1987]). In a prior appeal we denied defendant‘s motion for summary judgment (149 AD3d 401 [1st Dept 2017]). Consistent with that decision we find that plaintiff has a claim that warrants a determination after trial.

The order granting the motion to vacate the default was appealable under CPLR 5512 (a) and was appealable as of right under CPLR 5513 (a) and 5701 (a) (2). Contrary to defendant‘s contention, the inclusion of “without prejudice” does not render an order nonappealable (see Moleon v Kreisler Borg Florman Gen. Constr. Co., 304 AD2d 337, 339 [1st Dept 2003]). Notably, the order granting the motion to vacate the default does not include the language “without prejudice,” as that language is only included in the dismissal order. Concur—Sweeny, J.P., Gische, Webber, Kahn, Moulton, JJ.