Cadle Co. II, Inc. v. Becker

Appellate Division of the Supreme Court of New York

Cadle Co. II, Inc. v. Becker

261 A.D.2d 201, 689 N.Y.S.2d 506, 1999 N.Y. App. Div. LEXIS 5278

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

DecidedMay 13, 1999

StatusPublished

Cited by1 cases

This text of 261 A.D.2d 201 (Cadle Co. II, Inc. v. Becker) 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

Cadle Co. II, Inc. v. Becker, 261 A.D.2d 201, 689 N.Y.S.2d 506, 1999 N.Y. App. Div. LEXIS 5278 (N.Y. Ct. App. 1999).

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Opinion

—Order, Supreme Court, Bronx County (Jerry Crispino, J.), entered July 22, 1998, denying defendant Theresa Becker’s motion to vacate a deficiency judgment entered against her on her default, unanimously reversed, on the law, the facts and in the exercise of discretion, without costs, the motion granted and defendant directed to serve her answer within 30 days of the date hereof.

Although defendant’s submission of a letter in response to the summons and complaint did not constitute an answer or appearance (see, Matter of Kimball, 155 NY 62, writ of error dismissed 174 US 158), it cannot be said that her resulting default was willful since defendant, who was unrepresented by counsel at the time, appears to have reasonably believed that the letter sufficed to inform opposing counsel of facts dispositive of plaintiffs claim, namely, that defendant was not a party to the underlying real estate transaction and did not execute an assumption of the mortgage plaintiff sought to enforce against her. Accordingly, in light of the circumstances attending defendant’s default and defendant’s clear presentation of a prima facie meritorious defense (see, Tat Sang Kwong v Budge-Wood Laundry Serv., 97 AD2d 691), the action against defen[202]*202dant should be litigated on the merits. Concur — Nardelli, J. P., Wallach, Lemer and Andrias, JJ.

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—Order, Supreme Court, Bronx County (Jerry Crispino, J.), entered July 22, 1998, denying defendant Theresa Becker’s motion to vacate a deficiency judgment entered against her on her default, unanimously reversed, on the law, the facts and in the exercise of discretion, without costs, the motion granted and defendant directed to serve her answer within 30 days of the date hereof.

Although defendant’s submission of a letter in response to the summons and complaint did not constitute an answer or appearance (see, Matter of Kimball, 155 NY 62, writ of error dismissed 174 US 158), it cannot be said that her resulting default was willful since defendant, who was unrepresented by counsel at the time, appears to have reasonably believed that the letter sufficed to inform opposing counsel of facts dispositive of plaintiffs claim, namely, that defendant was not a party to the underlying real estate transaction and did not execute an assumption of the mortgage plaintiff sought to enforce against her. Accordingly, in light of the circumstances attending defendant’s default and defendant’s clear presentation of a prima facie meritorious defense (see, Tat Sang Kwong v Budge-Wood Laundry Serv., 97 AD2d 691), the action against defen[202]*202dant should be litigated on the merits. Concur — Nardelli, J. P., Wallach, Lemer and Andrias, JJ.

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Bluebook (online)

261 A.D.2d 201, 689 N.Y.S.2d 506, 1999 N.Y. App. Div. LEXIS 5278, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cadle-co-ii-inc-v-becker-nyappdiv-1999.

Opinion

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