Berner v. MCV Products, Inc.

Order unanimously reversed in the exercise of discretion without costs, motion granted and complaint reinstated. Memorandum: The court erred in granting reargument of defendant’s motion to dismiss for failure to prosecute and in adhering to its prior order granting that motion. Plaintiffs alternative motion to vacate the prior order based on excusable default (CPLR 5015) was the procedurally proper vehicle, rather than a motion to reargue, and we grant that motion in the exercise of our discretion. We find that plaintiff met his burden of showing a sufficient excuse for the default in…