Alternative Automotive, Inc. v. Mowbray

Appellate Division of the Supreme Court of New York

Alternative Automotive, Inc. v. Mowbray

101 A.D.2d 715, 476 N.Y.S.2d 46, 1984 N.Y. App. Div. LEXIS 18287

Appellate Division of the Supreme Court of the State of New York·Decided April 12, 1984·Published·Cited by 5 cases

Opinion

Order unanimously reversed, on the law and facts, without costs, and motion granted. Memorandum: Defendant’s motion to vacate a default judgment was denied by Special Term on constraint of Barasch v Micucci (49 NY2d 594) and Eaton v Equitable Life Assur. Soc. (56 NY2d 900). A subsequent statutory amendment restored discretion to excuse default based on law office failure (see L 1983, ch 318). The new law applies to all cases still pending before a court (Weissblum v Mostafzafan Foundation, 60 NY2d 637). The reasons for the brief default herein were excusable, and questions of fact suggesting a meritorious defense are raised by the verified answer, which may be regarded as an affidavit (CPLR 105, subd [t]). (Appeal from order of Supreme Court, Erie County, Cook, J. — vacate default judgment.) Present — Dillon, P. J., Callahan, Doerr, O’Donnell and Moule, JJ.

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Order unanimously reversed, on the law and facts, without costs, and motion granted. Memorandum: Defendant’s motion to vacate a default judgment was denied by Special Term on constraint of Barasch v Micucci (49 NY2d 594) and Eaton v Equitable Life Assur. Soc. (56 NY2d 900). A subsequent statutory amendment restored discretion to excuse default based on law office failure (see L 1983, ch 318). The new law applies to all cases still pending before a court (Weissblum v Mostafzafan Foundation, 60 NY2d 637). The reasons for the brief default herein were excusable, and questions of fact suggesting a meritorious defense are raised by the verified answer, which may be regarded as an affidavit (CPLR 105, subd [t]). (Appeal from order of Supreme Court, Erie County, Cook, J. — vacate default judgment.) Present — Dillon, P. J., Callahan, Doerr, O’Donnell and Moule, JJ.

Alternative Automotive, Inc. v. Mowbray, 101 A.D.2d 715, 476 N.Y.S.2d 46, 1984 N.Y. App. Div. LEXIS 18287 (N.Y. Ct. App. 1984).

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Opinion

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