LEARY v. POU POUNE, INC

Upon a showing of a lack of prejudice and a meritorious defense, a default judgment may be vacated and the action restored despite the existence of egregious law office failure (See, Martinez v. New York City Transit Authority, 183 A.D.2d 587). The failure to file an answer was clearly due to the derelictions of Hoskob's attorney. The record rebuts the presumption of abandonment or willfulness on the part of defendant. Therefore, Hoskob should not be deprived of its day in court by its attorney's neglect (Martinez v. New York City Transit Authority, supra). There is a sufficient showing of a meritorious defense based on the absence of control necessary to impose liability upon Hoskob, an out-of-possession landlord with a mere right of re-entry (See, Brooks v. Dupont, 164 A.D.2d 847). Further, there is a lack of prejudice to plaintiff since defendant participated in discovery (See, PM-OK Associates v. Britz, 256 A.D.2d 151). Accordingly, vacatur of the default is proper.

The egregious neglect of Hoskob's attorney is inexcusable and we deem it appropriate to require counsel to pay plaintiff's attorney $1,000 as a condition of restoring the action to the calendar.

Motion seeking to strike reply brief denied.

THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.