Abra Construction Corp. v. Hazelton Realty Corp.

Appellate Division of the Supreme Court of New York

Abra Construction Corp. v. Hazelton Realty Corp.

105 A.D.2d 657, 482 N.Y.S.2d 2, 1984 N.Y. App. Div. LEXIS 20765

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

DecidedNovember 27, 1984

StatusPublished

Cited by1 cases

This text of 105 A.D.2d 657 (Abra Construction Corp. v. Hazelton Realty Corp.) 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

Abra Construction Corp. v. Hazelton Realty Corp., 105 A.D.2d 657, 482 N.Y.S.2d 2, 1984 N.Y. App. Div. LEXIS 20765 (N.Y. Ct. App. 1984).

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Opinion

Order, Supreme Court, New York County (Manuel A. Gomez, J.), entered November 22, 1982, which, inter alia, gave defendants 20 days in which to answer the complaint, is unanimously modified, on the law and the facts and in the exercise of discretion, to the extent of: (1) deleting from the order leave to the [658]*658defendants to file an answer; (2) finding that the defendants are in default; and (3) granting plaintiff’s motion for an inquest and an assessment of damages, and otherwise affirmed, without costs.

Pursuant to agreement with the defendants, the plaintiff, between April, 1977 and March, 1978, furnished labor and materials, which had a value of $164,111.94, to the defendants’ premises, located at 58 West 89th Street in New York County. Since the defendants paid plaintiff only $72,610.52, on July 6, 1978, the plaintiff filed an amended mechanic’s lien in the amount of $91,501.42. Subsequently, in April, 1979, plaintiff commenced the instant action against defendants to foreclose the lien.

In view of the fact that more than two years had passed from the commencement of this action and the defendants had not served an answer, the plaintiff, in July, 1981, moved for an order directing an inquest and an assessment of damages. Defendants opposed and asserted the defense that they had never been served with process in connection with the action. This issue of whether jurisdiction had been obtained was referred by Special Term for a hearing and report. Thereafter, a referee reported that the defendants had been “properly served with process”. Plaintiff moved to confirm and defendants cross-moved to disaffirm the report. Special Term granted the motion to confirm. However, in addition, Special Term granted defendants leave to file an answer.

We find that Special Term abused its discretion in permitting defendants to file an answer, when they have been in default for over two years. Thus, we grant plaintiff’s motion for an inquest. Concur — Murphy, P. J., Sullivan, Ross, Asch and Kassal, JJ.

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Order, Supreme Court, New York County (Manuel A. Gomez, J.), entered November 22, 1982, which, inter alia, gave defendants 20 days in which to answer the complaint, is unanimously modified, on the law and the facts and in the exercise of discretion, to the extent of: (1) deleting from the order leave to the [658]*658defendants to file an answer; (2) finding that the defendants are in default; and (3) granting plaintiff’s motion for an inquest and an assessment of damages, and otherwise affirmed, without costs.

Pursuant to agreement with the defendants, the plaintiff, between April, 1977 and March, 1978, furnished labor and materials, which had a value of $164,111.94, to the defendants’ premises, located at 58 West 89th Street in New York County. Since the defendants paid plaintiff only $72,610.52, on July 6, 1978, the plaintiff filed an amended mechanic’s lien in the amount of $91,501.42. Subsequently, in April, 1979, plaintiff commenced the instant action against defendants to foreclose the lien.

In view of the fact that more than two years had passed from the commencement of this action and the defendants had not served an answer, the plaintiff, in July, 1981, moved for an order directing an inquest and an assessment of damages. Defendants opposed and asserted the defense that they had never been served with process in connection with the action. This issue of whether jurisdiction had been obtained was referred by Special Term for a hearing and report. Thereafter, a referee reported that the defendants had been “properly served with process”. Plaintiff moved to confirm and defendants cross-moved to disaffirm the report. Special Term granted the motion to confirm. However, in addition, Special Term granted defendants leave to file an answer.

We find that Special Term abused its discretion in permitting defendants to file an answer, when they have been in default for over two years. Thus, we grant plaintiff’s motion for an inquest. Concur — Murphy, P. J., Sullivan, Ross, Asch and Kassal, JJ.

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Bluebook (online)

105 A.D.2d 657, 482 N.Y.S.2d 2, 1984 N.Y. App. Div. LEXIS 20765, Counsel Stack Legal Research, https://law.counselstack.com/opinion/abra-construction-corp-v-hazelton-realty-corp-nyappdiv-1984.

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