Astron Steel Fabrications, Inc. v. Kent Restoration, Inc.

Appellate Division of the Supreme Court of New York

Astron Steel Fabrications, Inc. v. Kent Restoration, Inc.

283 A.D.2d 381, 723 N.Y.S.2d 860, 2001 N.Y. App. Div. LEXIS 4699

Appellate Division of the Supreme Court of the State of New York·Decided May 7, 2001·Published·Cited by 2 cases

Opinion

—In an action to recover damages for breach of contract, the defendant J.C.H. Delta Contracting, Inc., appeals from an order of the Supreme Court, Queens County (Levine, J.), dated June 7, 2000, which denied its motion, inter alia, to vacate its default in appearing at an inquest held on March 13, 2000.

Ordered that the order is reversed, the motion is granted, and the matter is remitted to the Supreme Court, Queens County, for a new inquest on damages.

As more than one year had elapsed since the appellant’s [382] default in appearing and answering, the appellant was entitled to at least five days notice of the time and place of the inquest (see, CPLR 3215 [g]; Skinner v Skinner, 90 AD2d 845; Pruna v Giacobbe, 42 Misc 2d 897, affd 24 AD2d 735). Accordingly, since the appellant did not receive such notice and was entitled to give testimony and offer proof on the issue of damages (see, Rokina Opt. Co. v Camera King, 63 NY2d 728), the Supreme Court improvidently exercised its discretion in refusing to grant the motion and vacate the appellant’s default in appearing at the inquest (see, Burns v Casale, 276 AD2d 734). Bracken, P. J., Friedmann, Florio, H. Miller and Townes, JJ., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

—In an action to recover damages for breach of contract, the defendant J.C.H. Delta Contracting, Inc., appeals from an order of the Supreme Court, Queens County (Levine, J.), dated June 7, 2000, which denied its motion, inter alia, to vacate its default in appearing at an inquest held on March 13, 2000.

Ordered that the order is reversed, the motion is granted, and the matter is remitted to the Supreme Court, Queens County, for a new inquest on damages.

As more than one year had elapsed since the appellant’s [382] default in appearing and answering, the appellant was entitled to at least five days notice of the time and place of the inquest (see, CPLR 3215 [g]; Skinner v Skinner, 90 AD2d 845; Pruna v Giacobbe, 42 Misc 2d 897, affd 24 AD2d 735). Accordingly, since the appellant did not receive such notice and was entitled to give testimony and offer proof on the issue of damages (see, Rokina Opt. Co. v Camera King, 63 NY2d 728), the Supreme Court improvidently exercised its discretion in refusing to grant the motion and vacate the appellant’s default in appearing at the inquest (see, Burns v Casale, 276 AD2d 734). Bracken, P. J., Friedmann, Florio, H. Miller and Townes, JJ., concur.

Astron Steel Fabrications, Inc. v. Kent Restoration, Inc., 283 A.D.2d 381, 723 N.Y.S.2d 860, 2001 N.Y. App. Div. LEXIS 4699 (N.Y. Ct. App. 2001).

Pincite

283 A.D.2d 381 (Astron Steel Fabrications, Inc. v. Kent Restoration, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

Related