Conlin v. Spath

75 A.D.2d 1019

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 9, 1980
• Status: Published

Opinion

Order unanimously reversed, with costs, and motion granted. Memorandum: Defendant moves to vacate a default judgment against him by which plaintiff was awarded damages for injuries sustained in a barroom assault. In his moving papers, defendant alleges that rather than being the aggressor he was the victim in the brawl and acted only in self-defense. When sued, he retained an attorney who submitted an answer on his behalf and took various pretrial steps in the litigation. When the case reached the Trial Calendar, defendant’s counsel withdrew without notice to his client, however, and permitted a default judgment to be entered. Thus, defendant submitted evidence of excusable default and a meritorious defense and his motion to vacate should have been granted (CPLR 5015, subd [a], par 1; Ladd v Stevenson, 112 NY 325). (Appeal from order of Oswego Supreme Court—vacate default.) Present—Simons, J. P., Hancock, Jr., Schnepp, Callahan and Moule, JJ.