        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

100
CA 13-00559
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.


IN THE MATTER OF JOHN REILLY,
PETITIONER-APPELLANT,

                    V                             MEMORANDUM AND ORDER

CITY OF ROME, ROME POLICE DEPARTMENT, AND
JAMES MASUCCI, COMMISSIONER OF PUBLIC SAFETY,
RESPONDENTS-RESPONDENTS.


FELT EVANS, LLP, CLINTON (JAY G. WILLIAMS, III, OF COUNSEL), FOR
PETITIONER-APPELLANT.

COHEN & COHEN LLP, UTICA (RICHARD A. COHEN OF COUNSEL), FOR
RESPONDENTS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Oneida County (Norman
I. Siegel, J.), entered June 13, 2012 in a proceeding pursuant to CPLR
article 78. The order granted respondents’ motion to vacate a default
judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: In this proceeding pursuant to CPLR article 78,
petitioner appeals from an order granting respondents’ motion to
vacate a default judgment. We note at the outset that, although no
appeal as of right lies from an intermediate order in a CPLR article
78 proceeding (see CPLR 5701 [b] [1]), we treat the notice of appeal
as an application for leave to appeal from the order and grant the
application (see Matter of Conde v Aiello, 204 AD2d 1029, 1029). It
is well settled that the decision whether to vacate a default judgment
is a matter within Supreme Court’s discretion (see Alliance Prop. Mgt.
& Dev. v Andrews Ave. Equities, 70 NY2d 831, 832-833). Here, given
that respondents proffered a reasonable excuse for failing to serve a
timely answer to the petition and demonstrated a meritorious defense
(see CPLR 5015 [a] [1]; Puchner v Nastke, 91 AD3d 1261, 1261-1262),
and considering the “strong public policy in favor of resolving cases
on the merits” (Moore v Day, 55 AD3d 803, 804; see Puchner, 91 AD3d at
1262), we conclude that the court did not abuse its discretion in
granting respondents’ motion (see Cavagnaro v Frontier Cent. Sch.
Dist., 17 AD3d 1099, 1099). We note that, prior to the default,
respondents engaged in settlement discussions with petitioner and
filed a motion to dismiss the petition, thus evidencing a “good faith
intent to defend” the proceeding on the merits (Coven v Trust Co. of
                                 -2-                           100
                                                         CA 13-00559

N.J., 225 AD2d 576, 576), and we further note that petitioner was not
prejudiced by the slight delay in answering the petition (see Accetta
v Simmons, 108 AD3d 1096, 1097).




Entered:   February 14, 2014                   Frances E. Cafarell
                                               Clerk of the Court
