Curtis v. Chase Collision

Appellate Terms of the Supreme Court of New York

Curtis v. Chase Collision

CourtAppellate Terms of the Supreme Court of New York

DecidedApril 27, 2017

Docket2017 NYSlipOp 50600(U)

StatusPublished

This text of Curtis v. Chase Collision (Curtis v. Chase Collision) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Curtis v. Chase Collision, (N.Y. Ct. App. 2017).

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Opinion

Mark A. Curtis, Respondent,

against

Chase Collision, Appellant.

Chase Collision, appellant pro se. Connor & Magee (Peter T. Connor, Esq.), for respondent.

Appeal from an order of the District Court of Nassau County, Second District (Scott H. Siller, J.), dated January 4, 2016. The order denied defendant's motion to vacate a judgment of the same court entered December 18, 2015 pursuant to a consent agreement executed following a small claims mediation.

ORDERED that the order is reversed, without costs, and defendant's motion to vacate the judgment entered December 18, 2015 is granted upon the condition that defendant mail a check in the sum of $668 by certified mail, return receipt requested, to plaintiff within 15 days of the service upon defendant of a copy of this decision and order; otherwise, the order is affirmed, without costs.

In this small claims action, plaintiff seeks a refund of the $5,000 he paid to defendant to repair and paint his car. Following a small claims mediation, the parties entered into a consent agreement, dated November 17, 2015, which awarded plaintiff $668 upon the condition that defendant send plaintiff that sum on or before December 1, 2015 at plaintiff's address. The agreement permitted plaintiff to enter judgment in the sum of $5,000 upon defendant's default in payment for 15 days. Upon plaintiff's submission on December 16, 2015 of an affidavit of default, judgment was entered in favor of plaintiff in the total sum of $5,073.22. Thereafter, defendant moved to vacate the judgment, and submitted sworn statements from its treasurer and manager and other documentation demonstrating that payment had been mailed to plaintiff by first class mail on November 30, 2015. Plaintiff failed to oppose the motion. By order entered January 4, 2016, the District Court denied the motion.

Defendant's motion papers demonstrated that defendant had timely mailed the $668 payment to plaintiff, and plaintiff, who did not submit opposition to the motion, failed to overcome the presumption of proper mailing which was demonstrated by defendant's employees' sworn statements. Accordingly, the order is reversed and defendant's motion to vacate the judgment is granted upon the condition that defendant mail a check in the amount of $668 to plaintiff by certified mail, return receipt requested, within 15 days of the service upon defendant of a copy of this decision and order; otherwise, the order is affirmed, without costs.

Marano, P.J., Garguilo and Brands, JJ., concur.

Decision Date: April 27, 2017

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Mark A. Curtis, Respondent,

against

Chase Collision, Appellant.

Chase Collision, appellant pro se. Connor & Magee (Peter T. Connor, Esq.), for respondent.

Appeal from an order of the District Court of Nassau County, Second District (Scott H. Siller, J.), dated January 4, 2016. The order denied defendant's motion to vacate a judgment of the same court entered December 18, 2015 pursuant to a consent agreement executed following a small claims mediation.

ORDERED that the order is reversed, without costs, and defendant's motion to vacate the judgment entered December 18, 2015 is granted upon the condition that defendant mail a check in the sum of $668 by certified mail, return receipt requested, to plaintiff within 15 days of the service upon defendant of a copy of this decision and order; otherwise, the order is affirmed, without costs.

In this small claims action, plaintiff seeks a refund of the $5,000 he paid to defendant to repair and paint his car. Following a small claims mediation, the parties entered into a consent agreement, dated November 17, 2015, which awarded plaintiff $668 upon the condition that defendant send plaintiff that sum on or before December 1, 2015 at plaintiff's address. The agreement permitted plaintiff to enter judgment in the sum of $5,000 upon defendant's default in payment for 15 days. Upon plaintiff's submission on December 16, 2015 of an affidavit of default, judgment was entered in favor of plaintiff in the total sum of $5,073.22. Thereafter, defendant moved to vacate the judgment, and submitted sworn statements from its treasurer and manager and other documentation demonstrating that payment had been mailed to plaintiff by first class mail on November 30, 2015. Plaintiff failed to oppose the motion. By order entered January 4, 2016, the District Court denied the motion.

Defendant's motion papers demonstrated that defendant had timely mailed the $668 payment to plaintiff, and plaintiff, who did not submit opposition to the motion, failed to overcome the presumption of proper mailing which was demonstrated by defendant's employees' sworn statements. Accordingly, the order is reversed and defendant's motion to vacate the judgment is granted upon the condition that defendant mail a check in the amount of $668 to plaintiff by certified mail, return receipt requested, within 15 days of the service upon defendant of a copy of this decision and order; otherwise, the order is affirmed, without costs.

Marano, P.J., Garguilo and Brands, JJ., concur.

Decision Date: April 27, 2017

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Curtis v. Chase Collision, Counsel Stack Legal Research, https://law.counselstack.com/opinion/curtis-v-chase-collision-nyappterm-2017.