Cooper Tank & Welding Corp. v. Century Recycling of N.Y., LLC

Appellate Division of the Supreme Court of New York

Cooper Tank & Welding Corp. v. Century Recycling of N.Y., LLC

304 A.D.2d 516, 756 N.Y.S.2d 878, 2003 N.Y. App. Div. LEXIS 3702

Appellate Division of the Supreme Court of the State of New York·Decided April 7, 2003·Published

Opinion

In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from so much of an order of the Supreme Court, Kings County (Mason, J.), dated January 29, 2002, as, in effect, granted that branch of the defendants’ motion which was to vacate so much of a judgment of the same court, dated December 13, 2001, as was in its favor and against the defendant Leo Bitetto, entered upon Bitetto’s failure to appear or answer, and to dismiss the complaint insofar as asserted against that defendant.

[517]*517Ordered that the order is reversed insofar as appealed from, on the law, with costs, that branch of the motion which was to vacate so much of the judgment as was in favor of the plaintiff and against the defendant Leo Bitetto and to dismiss the complaint insofar as asserted against that defendant is denied, and the judgment dated December 13, 2001, is reinstated.

Contrary to the determination of the Supreme Court, the conclusory allegations of the defendant Leo Bitetto that he did not receive the summons and complaint were insufficient to satisfy the burden for vacating his default (see Thattil v Mondesir, 275 AD2d 408, 409 [2000]; Remington Inv. v Seiden, 240 AD2d 647 [1997]; Sando Realty Corp. v Aris, 209 AD2d 682 [1994]).

The remaining contentions are without merit. Florio, J.P., S. Miller, Crane and Rivera, JJ., concur.

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In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from so much of an order of the Supreme Court, Kings County (Mason, J.), dated January 29, 2002, as, in effect, granted that branch of the defendants’ motion which was to vacate so much of a judgment of the same court, dated December 13, 2001, as was in its favor and against the defendant Leo Bitetto, entered upon Bitetto’s failure to appear or answer, and to dismiss the complaint insofar as asserted against that defendant.

[517]*517Ordered that the order is reversed insofar as appealed from, on the law, with costs, that branch of the motion which was to vacate so much of the judgment as was in favor of the plaintiff and against the defendant Leo Bitetto and to dismiss the complaint insofar as asserted against that defendant is denied, and the judgment dated December 13, 2001, is reinstated.

Contrary to the determination of the Supreme Court, the conclusory allegations of the defendant Leo Bitetto that he did not receive the summons and complaint were insufficient to satisfy the burden for vacating his default (see Thattil v Mondesir, 275 AD2d 408, 409 [2000]; Remington Inv. v Seiden, 240 AD2d 647 [1997]; Sando Realty Corp. v Aris, 209 AD2d 682 [1994]).

The remaining contentions are without merit. Florio, J.P., S. Miller, Crane and Rivera, JJ., concur.

Cooper Tank & Welding Corp. v. Century Recycling of N.Y., LLC, 304 A.D.2d 516, 756 N.Y.S.2d 878, 2003 N.Y. App. Div. LEXIS 3702 (N.Y. Ct. App. 2003).

Pincite

304 A.D.2d 516 (Cooper Tank & Welding Corp. v. Century Recycling of N.Y., LLC) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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