Cohen v. Schupler

Appellate Division of the Supreme Court of New York

Cohen v. Schupler

51 A.D.3d 706, 856 N.Y.S.2d 870

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

DecidedMay 13, 2008

StatusPublished

Cited by6 cases

This text of 51 A.D.3d 706 (Cohen v. Schupler) 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

Cohen v. Schupler, 51 A.D.3d 706, 856 N.Y.S.2d 870 (N.Y. Ct. App. 2008).

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Opinion

In an action to recover damages for breach of contract, the defendant appeals (1) from an order of the Supreme Court, Suffolk County (Mayer, J.), dated October 6, 2006, which granted the plaintiffs motion for leave to enter judgment on the issue of liability against him upon his default in answering and denied his cross motion for leave to serve a late answer, and (2), as limited by his brief, from so much of an order of the same court dated May 21, 2007, as denied that branch of his motion which was for leave to renew his opposition to the prior motion and his cross motion.

Ordered that the order dated October 6, 2006, is reversed, on the law, the facts, and in the exercise of discretion, the plaintiffs motion for leave to enter judgment on the issue of liability against the defendant upon his default in answering is denied, and the defendant’s cross motion for leave to serve a late answer is granted; and it is further,

Ordered that the appeal from the order dated May 21, 2007, is dismissed as academic in light of our determination on the appeal from the order dated October 6, 2006; and it is further,

Ordered that one bill of costs is awarded to the defendant.

The Supreme Court improvidently exercised its discretion in granting the plaintiffs motion for leave to enter a default judgment on the issue of liability since the plaintiff failed to present proof of the facts constituting the claim (see CPLR 3215 [f]). Neither the conclusory allegations of the complaint nor the affidavit of merit set forth the facts constituting the alleged negligence sufficiently to support a default judgment (see Beaton v Transit Facility Corp., 14 AD3d 637 [2005]). In contrast, the defendant’s cross motion for leave to serve a late answer demonstrated both a reasonable excuse for his default and a meritorious defense (cf. Fekete v Camp Skwere, 16 AD3d 544, 545 [2005]). Skelos, J.P., Santucci, Covello, McCarthy and Chambers, JJ., concur.

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In an action to recover damages for breach of contract, the defendant appeals (1) from an order of the Supreme Court, Suffolk County (Mayer, J.), dated October 6, 2006, which granted the plaintiffs motion for leave to enter judgment on the issue of liability against him upon his default in answering and denied his cross motion for leave to serve a late answer, and (2), as limited by his brief, from so much of an order of the same court dated May 21, 2007, as denied that branch of his motion which was for leave to renew his opposition to the prior motion and his cross motion.

Ordered that the order dated October 6, 2006, is reversed, on the law, the facts, and in the exercise of discretion, the plaintiffs motion for leave to enter judgment on the issue of liability against the defendant upon his default in answering is denied, and the defendant’s cross motion for leave to serve a late answer is granted; and it is further,

Ordered that the appeal from the order dated May 21, 2007, is dismissed as academic in light of our determination on the appeal from the order dated October 6, 2006; and it is further,

Ordered that one bill of costs is awarded to the defendant.

The Supreme Court improvidently exercised its discretion in granting the plaintiffs motion for leave to enter a default judgment on the issue of liability since the plaintiff failed to present proof of the facts constituting the claim (see CPLR 3215 [f]). Neither the conclusory allegations of the complaint nor the affidavit of merit set forth the facts constituting the alleged negligence sufficiently to support a default judgment (see Beaton v Transit Facility Corp., 14 AD3d 637 [2005]). In contrast, the defendant’s cross motion for leave to serve a late answer demonstrated both a reasonable excuse for his default and a meritorious defense (cf. Fekete v Camp Skwere, 16 AD3d 544, 545 [2005]). Skelos, J.P., Santucci, Covello, McCarthy and Chambers, JJ., concur.

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Bluebook (online)

51 A.D.3d 706, 856 N.Y.S.2d 870, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cohen-v-schupler-nyappdiv-2008.

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