Colgar Enterprises, Inc. v. Di Giaimo

Appellate Division of the Supreme Court of New York

Colgar Enterprises, Inc. v. Di Giaimo

41 A.D.2d 654, 340 N.Y.S.2d 573, 1973 N.Y. App. Div. LEXIS 5154

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

DecidedFebruary 13, 1973

StatusPublished

Cited by5 cases

This text of 41 A.D.2d 654 (Colgar Enterprises, Inc. v. Di Giaimo) 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

Colgar Enterprises, Inc. v. Di Giaimo, 41 A.D.2d 654, 340 N.Y.S.2d 573, 1973 N.Y. App. Div. LEXIS 5154 (N.Y. Ct. App. 1973).

Pincite

Opinion

In an action in ejectment to recover possession of certain real property and for damages, in which an order was made, on default, granting plaintiff’s motion for partial judgment, i.e., to award plaintiff title' and the right to possession of the property, and severing the action as to plaintiff’s claim for damages and defendant’s counterclaim for ¡damages, and upon which order a judgment was entered, defendant appeals from an order of the Supreme Court, Putnam County, dated September 6, 1972, which denied two motions by him, namely, (1) to open his default on plaintiff’s said motion, to vacate the partial summary judgment and to permit him to amend his answer by adding, as further defenses and counterclaims, claims for specific performance and fraud; and (2) inter alla to vacate the order granting plaintiff partial summary judgment. Order dated September 6, 1972 reversed, without costs; defendant’s motions granted to the extent that his default on plaintiff’s motion for summary judgment is opened; the order granting plaintiff partial summary judgment and the judgment entered thereon are vacated; defendant is granted leave to interpose an amended -answer; the amended answer (annexed to defendant’s motion papers to open his default) is deemed served; and plaintiff’s motion for summary judgment is remitted to the Special Term for further proceedings not inconsistent herewith and for a new determination. Plaintiff’s time to reply to the amended answer is extended until 20 days after entry of the order to be made hereon. It is strong public policy that matters be disposed of on the merits (Moran v. Rynar, 39 A D 2d 718; Springer v. Mafangio, 38 A D 2d 852). The record establishes that defendant’s default on plaintiff’s motion for summary judgment was not willful, but was the result of a belief [655]*655on the part of his former attorney that the motion would be adjourned. The motion to open his default was promptly made. Under the circumstances, it is our opinion that the denial of defendant’s motions was an improvident exercise of discretion. • Martuscelló, Acting P. J., Latham, Shapiro, Christ and Brennan, JJ., concur.

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In an action in ejectment to recover possession of certain real property and for damages, in which an order was made, on default, granting plaintiff’s motion for partial judgment, i.e., to award plaintiff title' and the right to possession of the property, and severing the action as to plaintiff’s claim for damages and defendant’s counterclaim for ¡damages, and upon which order a judgment was entered, defendant appeals from an order of the Supreme Court, Putnam County, dated September 6, 1972, which denied two motions by him, namely, (1) to open his default on plaintiff’s said motion, to vacate the partial summary judgment and to permit him to amend his answer by adding, as further defenses and counterclaims, claims for specific performance and fraud; and (2) inter alla to vacate the order granting plaintiff partial summary judgment. Order dated September 6, 1972 reversed, without costs; defendant’s motions granted to the extent that his default on plaintiff’s motion for summary judgment is opened; the order granting plaintiff partial summary judgment and the judgment entered thereon are vacated; defendant is granted leave to interpose an amended -answer; the amended answer (annexed to defendant’s motion papers to open his default) is deemed served; and plaintiff’s motion for summary judgment is remitted to the Special Term for further proceedings not inconsistent herewith and for a new determination. Plaintiff’s time to reply to the amended answer is extended until 20 days after entry of the order to be made hereon. It is strong public policy that matters be disposed of on the merits (Moran v. Rynar, 39 A D 2d 718; Springer v. Mafangio, 38 A D 2d 852). The record establishes that defendant’s default on plaintiff’s motion for summary judgment was not willful, but was the result of a belief [655]*655on the part of his former attorney that the motion would be adjourned. The motion to open his default was promptly made. Under the circumstances, it is our opinion that the denial of defendant’s motions was an improvident exercise of discretion. • Martuscelló, Acting P. J., Latham, Shapiro, Christ and Brennan, JJ., concur.

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Bluebook (online)

41 A.D.2d 654, 340 N.Y.S.2d 573, 1973 N.Y. App. Div. LEXIS 5154, Counsel Stack Legal Research, https://law.counselstack.com/opinion/colgar-enterprises-inc-v-di-giaimo-nyappdiv-1973.

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