Abate v. Long

Appellate Division of the Supreme Court of New York

Abate v. Long

261 A.D.2d 252, 690 N.Y.S.2d 267, 1999 N.Y. App. Div. LEXIS 5482

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 20, 1999

StatusPublished

Cited by5 cases

This text of 261 A.D.2d 252 (Abate v. Long) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Abate v. Long, 261 A.D.2d 252, 690 N.Y.S.2d 267, 1999 N.Y. App. Div. LEXIS 5482 (N.Y. Ct. App. 1999).

Pincite

Opinion

—Order, Supreme Court, New York County (Beverly Cohen, J.), entered January 5, 1998, which [253]*253denied plaintiffs’ motion to vacate the court’s order of dismissal dated September 23, 1997, unanimously reversed, on the law, on the facts, and in the exercise of discretion, without costs, the motion to vacate granted and the complaint reinstated.

Given our preference for disposition of cases on the merits (see, Santora & McKay v Mazzella, 211 AD2d 460, 463; DFI Communications v Golden Penn Theatre Ticket Serv., 87 AD2d 778, 779), we find that the motion court improvidently exercised its discretion in denying plaintiffs’ motion to vacate their default where they had demonstrated a meritorious cause of action and a reasonable excuse for their default (see, Santora & McKay v Mazzella, supra, at 463; Glass v Janbach Props., 73 AD2d 106, 110). The record clearly shows that their affidavit of merit, erroneously found to have raised a new theory of liability for which there had been no discovery, did no more than properly state, with greater specificity, a theory of medical malpractice that had been generally claimed in the bill of particulars. No new facts were alleged; thus defendant would not have been misled or prejudiced. Counsel’s showing of actual engagement in another court constituted reasonable excuse for the default (see, Zatorski v Klein, 11 AD2d 790; Slaughter & Co. v Saul, 53 NYS2d 73 [App Term 1945]). Concur — Ellerin, P. J., Williams, Mazzarelli and Buckley, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

—Order, Supreme Court, New York County (Beverly Cohen, J.), entered January 5, 1998, which [253]*253denied plaintiffs’ motion to vacate the court’s order of dismissal dated September 23, 1997, unanimously reversed, on the law, on the facts, and in the exercise of discretion, without costs, the motion to vacate granted and the complaint reinstated.

Given our preference for disposition of cases on the merits (see, Santora & McKay v Mazzella, 211 AD2d 460, 463; DFI Communications v Golden Penn Theatre Ticket Serv., 87 AD2d 778, 779), we find that the motion court improvidently exercised its discretion in denying plaintiffs’ motion to vacate their default where they had demonstrated a meritorious cause of action and a reasonable excuse for their default (see, Santora & McKay v Mazzella, supra, at 463; Glass v Janbach Props., 73 AD2d 106, 110). The record clearly shows that their affidavit of merit, erroneously found to have raised a new theory of liability for which there had been no discovery, did no more than properly state, with greater specificity, a theory of medical malpractice that had been generally claimed in the bill of particulars. No new facts were alleged; thus defendant would not have been misled or prejudiced. Counsel’s showing of actual engagement in another court constituted reasonable excuse for the default (see, Zatorski v Klein, 11 AD2d 790; Slaughter & Co. v Saul, 53 NYS2d 73 [App Term 1945]). Concur — Ellerin, P. J., Williams, Mazzarelli and Buckley, JJ.

Cite This Page — Counsel Stack

Bluebook (online)

261 A.D.2d 252, 690 N.Y.S.2d 267, 1999 N.Y. App. Div. LEXIS 5482, Counsel Stack Legal Research, https://law.counselstack.com/opinion/abate-v-long-nyappdiv-1999.

Opinion

Related

Cite This Page — Counsel Stack