Alter v. Chervin

Appellate Division of the Supreme Court of New York

Alter v. Chervin

133 A.D.2d 795, 520 N.Y.S.2d 350, 1987 N.Y. App. Div. LEXIS 51833

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

DecidedOctober 26, 1987

StatusPublished

This text of 133 A.D.2d 795 (Alter v. Chervin) 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

Alter v. Chervin, 133 A.D.2d 795, 520 N.Y.S.2d 350, 1987 N.Y. App. Div. LEXIS 51833 (N.Y. Ct. App. 1987).

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Opinion

— In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Williams, J.), dated June 2, 1987, which granted the motion of the defendant Aron Chervin pursuant to CPLR 5015 to vacate a default judgment [796]*796entered against him and in favor of the plaintiff, and directed the plaintiff to accept his notice of appearance with a demand for a complaint.

Ordered that the order is reversed, in the exercise of discretion, with costs, and the motion is denied.

We find that the respondent’s motion to vacate the default judgment entered against him should have been denied. In his affidavit of merit, the respondent acknowledged an awareness of the hazardous condition which allegedly caused the plaintiff to sustain injuries, and additionally stated that his failure to correct the condition was "inadvertent”. It is apparent that these allegations do not present a viable defense and, in fact, may constitute a concession of liability. Therefore, the respondent’s purported affidavit of merit was deficient, and the respondent’s motion to vacate the default judgment should have been denied. Mullen, P. J., Eiber, Kunzeman and Spatt, JJ., concur.

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— In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Williams, J.), dated June 2, 1987, which granted the motion of the defendant Aron Chervin pursuant to CPLR 5015 to vacate a default judgment [796]*796entered against him and in favor of the plaintiff, and directed the plaintiff to accept his notice of appearance with a demand for a complaint.

Ordered that the order is reversed, in the exercise of discretion, with costs, and the motion is denied.

We find that the respondent’s motion to vacate the default judgment entered against him should have been denied. In his affidavit of merit, the respondent acknowledged an awareness of the hazardous condition which allegedly caused the plaintiff to sustain injuries, and additionally stated that his failure to correct the condition was "inadvertent”. It is apparent that these allegations do not present a viable defense and, in fact, may constitute a concession of liability. Therefore, the respondent’s purported affidavit of merit was deficient, and the respondent’s motion to vacate the default judgment should have been denied. Mullen, P. J., Eiber, Kunzeman and Spatt, JJ., concur.

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Bluebook (online)

133 A.D.2d 795, 520 N.Y.S.2d 350, 1987 N.Y. App. Div. LEXIS 51833, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alter-v-chervin-nyappdiv-1987.