Buckheit v. Gerber Products Co.

Appellate Division of the Supreme Court of New York

Buckheit v. Gerber Products Co.

276 A.D.2d 734, 715 N.Y.S.2d 156, 2000 N.Y. App. Div. LEXIS 10910

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

DecidedOctober 30, 2000

StatusPublished

Cited by1 cases

This text of 276 A.D.2d 734 (Buckheit v. Gerber Products Co.) 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

Buckheit v. Gerber Products Co., 276 A.D.2d 734, 715 N.Y.S.2d 156, 2000 N.Y. App. Div. LEXIS 10910 (N.Y. Ct. App. 2000).

Pincite

Opinion

In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Suffolk County (Doyle, J.), dated February 28, 2000, which granted the plaintiffs’ motion to vacate their default in appearing at a trial conference and to restore the action to the trial calendar.

Ordered that the order is reversed, on the law, with costs, and the motion is denied.

Even when, as here, the plaintiffs timely move to vacate their default in appearing at a trial conference and to restore the action to the trial calendar within a year of the date it was marked off, they must demonstrate a reasonable excuse for the default, a meritorious claim, a lack of intent to deliberately abandon the action, and a lack of prejudice to the nonmoving party (see, Rose v Kagan & Clinton, 274 AD2d 510; Lupoli v Venus Labs., 264 AD2d 820; Barton v Jablon, 181 AD2d 755). Since the plaintiffs failed to demonstrate the existence of a meritorious claim, the Supreme Court erred in granting their motion. Ritter, J. P., Thompson, Friedmann, H. Miller and Feuerstein, JJ., concur.

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In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Suffolk County (Doyle, J.), dated February 28, 2000, which granted the plaintiffs’ motion to vacate their default in appearing at a trial conference and to restore the action to the trial calendar.

Ordered that the order is reversed, on the law, with costs, and the motion is denied.

Even when, as here, the plaintiffs timely move to vacate their default in appearing at a trial conference and to restore the action to the trial calendar within a year of the date it was marked off, they must demonstrate a reasonable excuse for the default, a meritorious claim, a lack of intent to deliberately abandon the action, and a lack of prejudice to the nonmoving party (see, Rose v Kagan & Clinton, 274 AD2d 510; Lupoli v Venus Labs., 264 AD2d 820; Barton v Jablon, 181 AD2d 755). Since the plaintiffs failed to demonstrate the existence of a meritorious claim, the Supreme Court erred in granting their motion. Ritter, J. P., Thompson, Friedmann, H. Miller and Feuerstein, JJ., concur.

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Bluebook (online)

276 A.D.2d 734, 715 N.Y.S.2d 156, 2000 N.Y. App. Div. LEXIS 10910, Counsel Stack Legal Research, https://law.counselstack.com/opinion/buckheit-v-gerber-products-co-nyappdiv-2000.

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