Supreme Court of New York, New York County, March 15, 2021
In this asbestos action, the plaintiff’s counsel signed two unopposed summary judgment motions and orders submitted by counsel for Nash Engineering and Atwood & Morrill, respectively. The plaintiff’s counsel filed a motion to vacate the orders pursuant to NY CPLR § 5015(a)(1), and defense counsel opposed the motions. Ultimately, Justice Silvera granted the plaintiff’s motion to vacate both orders.
Under NY CPLR § 5015(a)(1), a motion to vacate a default judgment or order can be successful if the “motion is made within one year of service of a copy of the judgment with notice of entry and the moving party has the burden of demonstrating both: (1) a reasonable excuse for the default; and (2) a meritorious defense to the action.” Navarro v A. Trenkman Estate, Inc., 279 AD2d 257, 258 (1st Dep’t 2001); Cedeno v Wimbledon Building Corp., 207 AD2d 297, 297 (1st Dep’t 1994). As to the first prong, the plaintiff’s counsel stated that the orders were inadvertently signed by counsel, due to a paralegal placing the orders in the wrong pile for the attorney’s signature. Justice Silvera noted that the plaintiff’s counsel excuse of law office failure has been recognized by the First Department as a reasonable excuse for a default. Knight v Acacia Network, Inc., 177 AD3d 499, 499 (1st Dep’t 2019).
As to the second prong, the plaintiff’s counsel contends the plaintiff has a meritorious claim. During his deposition, the plaintiff testified that he was exposed to asbestos from cleaning insulation after others installed new equipment on the USS LaSalle in August 1963. The plaintiff also submitted the deposition testimony of George Zachmann, who testified that Nash and Atwood & Morrill equipment was on board the USS LaSalle. In addition, the plaintiff’s counsel proffered Naval records, which showed the presence of Nash and Atwood & Morrill equipment on board the USS LaSalle. The defendants opposed this portion of the plaintiff’s motion, arguing the plaintiff cannot rely “solely on the deposition of Mr. Zachmann to create a nexus between defendants’ products and plaintiff’s asbestos exposure.” Justice Silvera rejected Defendants’ argument, noting that the plaintiff does not solely rely on Mr. Zachmann’s testimony.
Finally, Justice Silvera set forth that the motion was not time barred as the defendants failed to file and serve the order with notice of entry.