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CUERVO FARRAH et al., Appellants, v. MANUEL R. PINOS et al., Respondents.

Ordered that the order dated November 20, 2009, is reversed, on the law and in the exercise of discretion, the motion to vacate the order dated May 7, 2009, is granted, and the matter is remitted to the Supreme Court, Queens County, for a determination of the defendants' motion for summary judgment on the merits and upon the papers submitted.

Under the unusual procedural circumstances of this case, and since the record reflects excusable default and a potentially meritorious cause of action, the Supreme Court erred in, in effect, denying the plaintiffs' motion to vacate a prior order dated May 7, 2009 ( see generally CPLR 5015; Ismailov v Cohen, 26 AD3d 412; Pelaez v Westchester Med. Ctr., 15 AD3d 375). Accordingly, we remit the matter to the Supreme Court, Queens County, for a determination of the motion for summary judgment on the merits and upon the papers submitted.

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FARRAH v. PINOS
(Nov 30, 2010)