Curran v. Graf

Appellate Division of the Supreme Court of New York

Curran v. Graf

13 A.D.3d 409, 789 N.Y.S.2d 891, 2004 N.Y. App. Div. LEXIS 15250

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

DecidedDecember 13, 2004

StatusPublished

Cited by4 cases

This text of 13 A.D.3d 409 (Curran v. Graf) 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.

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Curran v. Graf, 13 A.D.3d 409, 789 N.Y.S.2d 891, 2004 N.Y. App. Div. LEXIS 15250 (N.Y. Ct. App. 2004).

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Opinion

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Costello, J.), dated December 15, 2003, which denied their motion for leave to enter judgment against the defendants William Graf and Janice Graf upon their default in appearing or answering and deemed the proposed verified answer of those defendants to have been served.

Ordered that the order is affirmed, with costs.

The Supreme Court providently exercised its discretion in denying the plaintiffs’ motion for leave to enter a judgment against the respondents upon their default in appearing or answering, and in deeming the respondents’ proposed verified answer to have been served. A court may vacate a default where the moving party demonstrates both a reasonable excuse for the default and the existence of a meritorious defense (see CPLR 5015 [a] [1]). It was within the discretion of the Supreme Court, in the interest of justice, to excuse default resulting from “law office failure” (CPLR 2005; see CPLR 2004; Tewari v Tsoutsouras, 75 NY2d 1, 12 [1989]). Furthermore, the respondents’ proposed verified answer set forth facts sufficient to make out a prima facie showing of a meritorious defense (see Bartoo v Buell, 87 NY2d 362 [1996]; Rosenberg v Eternal Mems., 291 AD2d 391 [2002]; Lichtman v Sears, Roebuck & Co., 236 AD2d 373 [1997]). S. Miller, J.P., Smith, Cozier and Fisher, JJ., concur.

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In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Costello, J.), dated December 15, 2003, which denied their motion for leave to enter judgment against the defendants William Graf and Janice Graf upon their default in appearing or answering and deemed the proposed verified answer of those defendants to have been served.

Ordered that the order is affirmed, with costs.

The Supreme Court providently exercised its discretion in denying the plaintiffs’ motion for leave to enter a judgment against the respondents upon their default in appearing or answering, and in deeming the respondents’ proposed verified answer to have been served. A court may vacate a default where the moving party demonstrates both a reasonable excuse for the default and the existence of a meritorious defense (see CPLR 5015 [a] [1]). It was within the discretion of the Supreme Court, in the interest of justice, to excuse default resulting from “law office failure” (CPLR 2005; see CPLR 2004; Tewari v Tsoutsouras, 75 NY2d 1, 12 [1989]). Furthermore, the respondents’ proposed verified answer set forth facts sufficient to make out a prima facie showing of a meritorious defense (see Bartoo v Buell, 87 NY2d 362 [1996]; Rosenberg v Eternal Mems., 291 AD2d 391 [2002]; Lichtman v Sears, Roebuck & Co., 236 AD2d 373 [1997]). S. Miller, J.P., Smith, Cozier and Fisher, JJ., concur.

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Bluebook (online)

13 A.D.3d 409, 789 N.Y.S.2d 891, 2004 N.Y. App. Div. LEXIS 15250, Counsel Stack Legal Research, https://law.counselstack.com/opinion/curran-v-graf-nyappdiv-2004.

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