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MASSACHUSETTS ASSET FINANCING CORP., PLAINTIFF-APPELLANT, v. JEAN M. ZAWATSKI DI LAURA AND VINCENT JOSEPH DI LAURA, DEFENDANTS-RESPONDENTS.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed with costs.

Memorandum:

Pursuant to CPLR 3213, plaintiff commenced this action by motion for summary judgment in lieu of complaint, seeking to hold defendants liable on a promissory note executed by defendant Jean M. Zawatski DiLaura and/or a default judgment obtained by plaintiff against her in Massachusetts. Defendants initially failed to answer or otherwise appear in this action, and plaintiff obtained a default judgment against them in the amount of $384,923.33. We conclude that Supreme Court properly granted that part of the motion of defendants seeking to vacate the default judgment entered against defendant Vincent Joseph DiLaura (DiLaura). DiLaura demonstrated a reasonable excuse for his default and a meritorious defense to the action ( see Di Lorenzo, Inc. v. Dutton Lbr. Co., 67 N.Y.2d 138, 141; see also Yacone v. Ryan Homes, 216 A.D.2d 963; Bernardo v. USAir Group, 175 A.D.2d 642; Price v. Polisner, 172 A.D.2d 422, 422-423). "Given the brief overall delay, the promptness with which defendant[s] moved to vacate the judgment, the lack of any intention on [DiLaura's] part to abandon the action, plaintiff's failure to demonstrate any prejudice attributable to the delay, and the preference for resolving disputes on the merits, we conclude that [DiLaura's] brief default in appearing [was properly] excused" ( Mayville v. Wal-Mart Stores, 273 A.D.2d 944, 945; see Cerrone v. Fasulo, 245 A.D.2d 793, 794; Dwyer v. West Bradford Corp., 188 A.D.2d 813, 815; Zablocki v. Straley, 173 A.D.2d 1015, 1016).

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MASSACHUSETTS ASSET FINANCING v. DI LAURA
(Nov 15, 2002)