| IDS Prop. Cas. Ins. Co. v Metro Health Prods., Inc. |
| 2016 NY Slip Op 50089(U) [50 Misc 3d 136(A)] |
| Decided on January 27, 2016 |
| Appellate Term, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Petitioner, as limited by its brief, appeals from so much of an order of the Civil Court of the City of New York, New York County (Gerald Lebovits, J.), entered July 30, 2014, which granted respondent's motion to vacate its default in opposing the underlying petition to vacate a master arbitrator's award and, upon such vacatur, denied the petition and confirmed the award.
Per Curiam.
Order (Gerald Lebovits, J.), entered July 30, 2014 affirmed, with $25 costs, for the reasons stated by Gerald Lebovits, J. at Civil Court.
We find no cause to disturb the motion court's discretionary determination to vacate respondent's default in this special proceeding pursuant to CPLR 7511(b). Respondent demonstrated a reasonable excuse for its delay in answering the petition through the affidavit of its principal detailing respondent's regular mail-receipt procedures, and asserting that the petition was not received by respondent (see Hospital for Joint Diseases v Lincoln Gen. Ins. Co., 55 AD3d 543 [2008]; cf. Commerce Bank, N.A. v Executive Settlement Servs. 1 LLC, 66 AD3d 526 [2009]). Moreover, "[a] meritorious defense was shown by [respondent's] attorney's affirmation which referred to attached documentary evidence demonstrating defenses to the [petitioner's] claims" (RMR Wine Distribs. Corp. v Fratelli Pasqua, Sp.A., 126 AD2d 535, 536 [1987]). In these circumstances, and considering the strong policy favoring resolution of cases on the merits (see Chevalier v 368 E. 148th St. Assoc., LLC, 80 AD3d 411, 413-414 [2011]), which is "equally applicable in the context of a proceeding to set aside an award rendered in arbitration" (Brook Bond India v Gel Spice Co., 192 AD2d 458, 460 [1993]), the court providently exercised its discretion in granting vacatur relief.
Although the order to show cause directed service upon petitioner instead of petitioner's attorney (see CPLR 2103[b]), this "was a mere irregularity that did not result in substantial prejudice to [petitioner]" given that petitioner was able to address the motion on the merits in its opposition papers (see also Barnaba-Hohm v St. Joseph's Hosp. Health Ctr., 130 AD3d 1482, [*2]1483 [2015]; Jones v LeFrance Leasing L.P., 81 AD3d 900, 903 [2011]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.