De Benedictis v. Rahbar

—Judgment, Supreme Court, New York County (Ira Gammerman, J.), entered June 1, 1998, awarding plaintiffs a total of $332,128.82 upon defendant’s failure to appear at an inquest as to damages, and bringing up for review an order, same court and Justice, entered May 27, 1998, denying defendant’s motion to vacate his default, and order, same court and Justice, entered January 16, 1998, granting plaintiffs’ motion for partial summary judgment, unanimously reversed, on the law, the facts, and in the exercise of discretion, without costs, the judgment vacated, the motion to vacate the default granted, and the matter remanded for a new inquest as to damages. Appeal from the May 27, 1998 order, unanimously dismissed, without costs, as subsumed within the appeal from the ensuing judgment.

The grant of plaintiffs 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 AD2d 892).

*135The 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. Concur — Rosenberger, J. P., Williams, Lerner, Saxe and Buckley, JJ.