Bradley v. Evans

Appellate Division of the Supreme Court of New York

Bradley v. Evans

297 A.D.2d 392, 746 N.Y.2d 617, 746 N.Y.S.2d 617, 2002 N.Y. App. Div. LEXIS 8155

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

DecidedAugust 28, 2002

StatusPublished

Cited by2 cases

This text of 297 A.D.2d 392 (Bradley v. Evans) 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

Bradley v. Evans, 297 A.D.2d 392, 746 N.Y.2d 617, 746 N.Y.S.2d 617, 2002 N.Y. App. Div. LEXIS 8155 (N.Y. Ct. App. 2002).

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Opinion

[393]*393The record demonstrates confusion as to whether the title and/or index number of this proceeding was read when the calendar was called on the return date of the order to show cause by which it was commenced. It is clear that the appellant was in the courtroom at the time the calendar was called and intended to participate in the proceedings. Under the circumstances, it cannot be concluded that the appellant was in default, and even if he was, the record indicates that his default was not intentional or the result of bad faith (see Matter of Santiago v Santiago, 275 AD2d 429; Krebs v Cabrera, 250 AD2d 736, 737; Key Bank of Southeastern N.Y. v hammers, 191 AD2d 615, 616). Moreover, it appears that the appellant may have a colorable defense (see Key Bank of Southeastern N.Y. v hammers, supra at 616).

Accordingly, the appellant’s motion to vacate so much of the final order invalidating so much of the petition as designated him as a candidate, entered upon his failure to appear at the hearing, is granted, and the matter is remitted to the Supreme Court, Kings County, to decide the proceeding on the merits insofar as it relates to the appellant. Prudenti, P.J., Florio, McGinity, Crane and Cozier, JJ., concur.

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[393]*393The record demonstrates confusion as to whether the title and/or index number of this proceeding was read when the calendar was called on the return date of the order to show cause by which it was commenced. It is clear that the appellant was in the courtroom at the time the calendar was called and intended to participate in the proceedings. Under the circumstances, it cannot be concluded that the appellant was in default, and even if he was, the record indicates that his default was not intentional or the result of bad faith (see Matter of Santiago v Santiago, 275 AD2d 429; Krebs v Cabrera, 250 AD2d 736, 737; Key Bank of Southeastern N.Y. v hammers, 191 AD2d 615, 616). Moreover, it appears that the appellant may have a colorable defense (see Key Bank of Southeastern N.Y. v hammers, supra at 616).

Accordingly, the appellant’s motion to vacate so much of the final order invalidating so much of the petition as designated him as a candidate, entered upon his failure to appear at the hearing, is granted, and the matter is remitted to the Supreme Court, Kings County, to decide the proceeding on the merits insofar as it relates to the appellant. Prudenti, P.J., Florio, McGinity, Crane and Cozier, JJ., concur.

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Bluebook (online)

297 A.D.2d 392, 746 N.Y.2d 617, 746 N.Y.S.2d 617, 2002 N.Y. App. Div. LEXIS 8155, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bradley-v-evans-nyappdiv-2002.

Opinion

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