Chase Manhattan Bank, N. A. v. Our Own Farm, Inc.

237 A.D.2d 222, 655 N.Y.S.2d 938, 1997 N.Y. App. Div. LEXIS 2927

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 27, 1997
• Status: Published

Opinion

Order, Supreme Court, New York County (Ira Gammerman, J.), entered on or about January 2, 1996, which denied defendants-appellants’ motion to vacate a prior order, same court and Justice entered March 19, 1996, striking their answer and directing entry of judgment against them on the issue of liability for failure to appear at a pretrial conference, unanimously affirmed, without costs. The appeal from that prior order is unanimously dismissed, without costs, as taken from a nonappealable order.

No appeal lies from the order that struck defendants’ answer when their former attorney failed to appear for a pretrial conference after indicating at a previous conference that defendants had no viable defense to the action, and the motion to vacate this default was properly denied for failure to show a meritorious defense. Plaintiff clearly acted in a commercially reasonable manner in directly seeking to collect payment from the borrower’s account debtors (UCC 9-502; Matter of Teltronics Servs., 29 Bankr 139, 166-167; Manufacturers & Traders Trust Co. v Pro-Mation, Inc., 115 AD2d 976). Defendants’ answer admitted the validity of the guaranties (CPLR 3018 [a]; see, Human Dev. Servs. v Zoning Bd. of Appeals, 67 NY2d 702, 705); and the defense of forgery asserted by one of the defendants was not originally asserted in the answer she jointly served with the other defendants, and no request was ever made to amend the answer on that basis. Concur—Ellerin, J. P., Wallach, Williams and Mazzarelli, JJ.