Cadle Co. II, Inc. v. Becker

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

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 defendant should be litigated on the merits. Concur — Nardelli, J. P., Wallach, Lemer and Andrias, JJ.