DE BENEDICTIS v. RAHBAR

The grant of plaintiff's motion for partial summary judgment as to liability was correct since it rested upon an interpretation of the parties' agreements that was consistent with the parties' intent as made clearly manifest in the terms of such agreements (see, e.g., U.S. Bldg. Maintenance Co. v. State of New York, 65 A.D.2d 892).

The motion court should have found that defendant had offered a valid excuse for failing to appear at the inquest on damages. Defendant was present before the referee but his counsel had sent a message that he was appearing in another courtroom on a different matter, and intended to appear for the inquest as soon as the other case was completed. It was improper for the referee to refuse defendant the opportunity to participate in the inquest when defense counsel arrived only a few moments after the proceeding had begun. CPLR 2005 and 3012(d) empower the courts to exercise discretion in determining motions to vacate defaults emanating from law office failure. Here, it was an improvident exercise of discretion by the motion court to deny defendant's motion to vacate when he established a reasonable excuse for his failure to timely appear.

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