Banner Casualty Co. v. Morstan Agency

70 A.D.2d 579, 416 N.Y.S.2d 759, 1979 N.Y. App. Div. LEXIS 11982

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 7, 1979
• Status: Published

Opinion

— In an action to recover premiums due on an agency contract, the plaintiff appeals from three orders of the Supreme Court, Nassau County, dated May 11, 1978, November 28, 1978 and January 5, 1979, respectively, which denied its motions for leave to renew the denial of its previous motion to vacate its default in serving a reply to defendant’s counterclaim. Order dated January 5, 1979 reversed, without costs or disbursements, motion to renew granted and, upon renewal, motion to vacate the default granted on condition that the plaintiff pay defendant’s attorney the sum of $500 within 10 days after service upon it of a copy of the order to be entered hereon, together with notice of entry thereof. In the event such condition is not complied with, order affirmed, with $50 costs and disbursements. Plaintiff’s time to serve its reply is extended until 20 days after payment of the $500. Appeals from the orders dated May 11, 1978 and November 28, 1978 dismissed, without costs or disbursements, in light of the determination on the appeal from the order dated January 5, 1979. We find that Special Term’s refusal to allow the plaintiff to interpose a reply to the defendant’s counterclaim under the circumstances present constituted an abuse of discretion (see Fisher v Stripeikas, 65 AD2d 598). Hopkins, J. P., Damiani, Titone and Suozzi, JJ., concur.