Behar v. City of New York

Appellate Division of the Supreme Court of New York

Behar v. City of New York

71 A.D.2d 994, 420 N.Y.S.2d 364, 1979 N.Y. App. Div. LEXIS 13315

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

DecidedSeptember 24, 1979

StatusPublished

This text of 71 A.D.2d 994 (Behar v. City of New York) 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

Behar v. City of New York, 71 A.D.2d 994, 420 N.Y.S.2d 364, 1979 N.Y. App. Div. LEXIS 13315 (N.Y. Ct. App. 1979).

Pincite

Opinion

In a wrongful death action, plaintiff appeals from an order of the ■ Supreme Court, Kings County, dated January 2, 1979, which, upon granting the motion of defendant Fields Linens, Inc., to vacate its default in opposing plaintiffs cross motion to dismiss the third affirmative defense of said defendant, denied the cross motion. Order affirmed, without costs or disbursements. Although the application which led to the order under review should not have been entertained because it was in the nature of a motion to reargue and not a motion to vacate a default (see CPLR 2216, 2221), under the facts herein this court is not bound by the doctrine of the [995]*995law of the case and may pass upon the merits of the motion. The cross motion to dismiss the third affirmative defense was properly denied. The record fails to establish that plaintiff was self-employed and the resolution of this issue must await further proceedings. O’Connor, J. P., Lazer, Rabin and Gulotta, JJ., concur.

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In a wrongful death action, plaintiff appeals from an order of the ■ Supreme Court, Kings County, dated January 2, 1979, which, upon granting the motion of defendant Fields Linens, Inc., to vacate its default in opposing plaintiffs cross motion to dismiss the third affirmative defense of said defendant, denied the cross motion. Order affirmed, without costs or disbursements. Although the application which led to the order under review should not have been entertained because it was in the nature of a motion to reargue and not a motion to vacate a default (see CPLR 2216, 2221), under the facts herein this court is not bound by the doctrine of the [995]*995law of the case and may pass upon the merits of the motion. The cross motion to dismiss the third affirmative defense was properly denied. The record fails to establish that plaintiff was self-employed and the resolution of this issue must await further proceedings. O’Connor, J. P., Lazer, Rabin and Gulotta, JJ., concur.

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Bluebook (online)

71 A.D.2d 994, 420 N.Y.S.2d 364, 1979 N.Y. App. Div. LEXIS 13315, Counsel Stack Legal Research, https://law.counselstack.com/opinion/behar-v-city-of-new-york-nyappdiv-1979.