Adamson v. Silvestrelli

Appellate Division of the Supreme Court of New York

Adamson v. Silvestrelli

34 A.D.2d 633, 309 N.Y.S.2d 541, 1970 N.Y. App. Div. LEXIS 5100

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

DecidedApril 16, 1970

StatusPublished

This text of 34 A.D.2d 633 (Adamson v. Silvestrelli) 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

Adamson v. Silvestrelli, 34 A.D.2d 633, 309 N.Y.S.2d 541, 1970 N.Y. App. Div. LEXIS 5100 (N.Y. Ct. App. 1970).

Pincite

Opinion

Order entered August 27, 1968 unanimously reversed on the law, the facts and in the exercise of discretion, without costs and without disbursements, and the motion to open the plaintiff’s default and to vacate the judgment entered January 12, 1965 denied. Although a complaint was never served, it appears that plaintiff’s accident occurred on August 30,1959. After a service of the summons, the plaintiff did not enter a default judgment (CPLR 3215) and further failed to serve a complaint after demand. Thereafter he defaulted on the motion to dismiss his action pursuant to CPLR 3012 (subd. [b]). Although admitting receipt under date of January 12, 1965 of the default judgment of dismissal, plaintiff waited more than three years before taking action to vacate the judgment. No [634]*634excuse was offered concerning this last delay nor was explanation given for the original default. {Lind v. Port of N. Y. Aufh., 28 A D 2d 984; Dooley v. Flavel, 28 A D 2d 1115.) Concur—Capozzoli, J. F., McGivern, Markewich and Tilzer, JJ.

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Order entered August 27, 1968 unanimously reversed on the law, the facts and in the exercise of discretion, without costs and without disbursements, and the motion to open the plaintiff’s default and to vacate the judgment entered January 12, 1965 denied. Although a complaint was never served, it appears that plaintiff’s accident occurred on August 30,1959. After a service of the summons, the plaintiff did not enter a default judgment (CPLR 3215) and further failed to serve a complaint after demand. Thereafter he defaulted on the motion to dismiss his action pursuant to CPLR 3012 (subd. [b]). Although admitting receipt under date of January 12, 1965 of the default judgment of dismissal, plaintiff waited more than three years before taking action to vacate the judgment. No [634]*634excuse was offered concerning this last delay nor was explanation given for the original default. {Lind v. Port of N. Y. Aufh., 28 A D 2d 984; Dooley v. Flavel, 28 A D 2d 1115.) Concur—Capozzoli, J. F., McGivern, Markewich and Tilzer, JJ.

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Bluebook (online)

34 A.D.2d 633, 309 N.Y.S.2d 541, 1970 N.Y. App. Div. LEXIS 5100, Counsel Stack Legal Research, https://law.counselstack.com/opinion/adamson-v-silvestrelli-nyappdiv-1970.