Angelo v. O'Connor

Appellate Division of the Supreme Court of New York

Angelo v. O'Connor

201 A.D.2d 690, 608 N.Y.S.2d 280, 1994 N.Y. App. Div. LEXIS 1684

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

DecidedFebruary 28, 1994

StatusPublished

This text of 201 A.D.2d 690 (Angelo v. O'Connor) 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

Angelo v. O'Connor, 201 A.D.2d 690, 608 N.Y.S.2d 280, 1994 N.Y. App. Div. LEXIS 1684 (N.Y. Ct. App. 1994).

Pincite

Opinion

In an action to recover damages for malicious prosecution, the plaintiff appeals from so much of an order of the Supreme Court, Nassau County (Becker, J.), dated December 16, 1991, as, upon granting that branch of his motion which was to vacate a default judgment, impliedly denied that branch of his motion which was for leave to serve and file papers in opposition to the defendants’ prior motion for summary judgment, and granted the defendants’ prior motion for summary judgment dismissing the complaint on the merits.

Ordered that the order is reversed insofar as appealed from, that branch of the plaintiff’s motion which was for leave to serve and file papers opposing the defendants’ motion for summary judgment is granted, and the complaint is reinstated; and it is further,

Ordered that the plaintiff’s time to serve and file papers in opposition to the defendants’ motion for summary judgment is extended until 20 days after service upon him of a copy of this decision and order; and it is further,

Ordered that the plaintiff is awarded one bill of costs.

The defendants moved for summary judgment and, after the plaintiff failed to submit opposing papers, the defendants were given leave to enter a default judgment. The plaintiff then [691]*691moved to vacate the default judgment and for leave to serve and file papers opposing the defendants’ summary judgment motion. The court granted the motion to vacate, but simultaneously awarded the defendants summary judgment dismissing the complaint without allowing the plaintiff an opportunity to oppose the motion. We reverse.

It was error to decide the merits of the case without allowing the plaintiff to address the merits (see, David v Barnes, 130 AD2d 703). We remit the matter to the Supreme Court, Nassau County, for further proceedings consistent with our determination. Thompson, J. P., Rosenblatt, Ritter, Friedmann and Krausman, JJ., concur.

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In an action to recover damages for malicious prosecution, the plaintiff appeals from so much of an order of the Supreme Court, Nassau County (Becker, J.), dated December 16, 1991, as, upon granting that branch of his motion which was to vacate a default judgment, impliedly denied that branch of his motion which was for leave to serve and file papers in opposition to the defendants’ prior motion for summary judgment, and granted the defendants’ prior motion for summary judgment dismissing the complaint on the merits.

Ordered that the order is reversed insofar as appealed from, that branch of the plaintiff’s motion which was for leave to serve and file papers opposing the defendants’ motion for summary judgment is granted, and the complaint is reinstated; and it is further,

Ordered that the plaintiff’s time to serve and file papers in opposition to the defendants’ motion for summary judgment is extended until 20 days after service upon him of a copy of this decision and order; and it is further,

Ordered that the plaintiff is awarded one bill of costs.

The defendants moved for summary judgment and, after the plaintiff failed to submit opposing papers, the defendants were given leave to enter a default judgment. The plaintiff then [691]*691moved to vacate the default judgment and for leave to serve and file papers opposing the defendants’ summary judgment motion. The court granted the motion to vacate, but simultaneously awarded the defendants summary judgment dismissing the complaint without allowing the plaintiff an opportunity to oppose the motion. We reverse.

It was error to decide the merits of the case without allowing the plaintiff to address the merits (see, David v Barnes, 130 AD2d 703). We remit the matter to the Supreme Court, Nassau County, for further proceedings consistent with our determination. Thompson, J. P., Rosenblatt, Ritter, Friedmann and Krausman, JJ., concur.

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Bluebook (online)

201 A.D.2d 690, 608 N.Y.S.2d 280, 1994 N.Y. App. Div. LEXIS 1684, Counsel Stack Legal Research, https://law.counselstack.com/opinion/angelo-v-oconnor-nyappdiv-1994.

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