D. M. G. Construction Corp. v. Marcello

55 A.D.2d 670, 390 N.Y.S.2d 181, 1976 N.Y. App. Div. LEXIS 15429

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 27, 1976
• Status: Published

Opinion

n an action to recover damages for breach of contract, in which defendants interposed a counterclaim, the plaintiff appeals (1) as limited by his brief, from so much of an order of the Supreme Court, Nassau County, dated June 30, 1976, as (a) granted the branch of defendants’ motion which sought summary judgment on their counterclaim upon plaintiff’s default in serving a reply, and (b) failed to grant plaintiff’s application for leave to interpose a reply and (2) from a further order of the same court, dated June 28, 1976, which denied the plaintiff’s motion which was, in effect, for reargument. Appeal from the order dated June 28, 1976 dismissed, without costs or disbursements. No appeal lies from an order denying reargument. Order dated June 30, 1976 reversed insofar as appealed from, without costs or disbursements, the said branch of defendants’ motion denied, the plaintiff’s application to interpose a reply granted and the proposed reply annexed to the plaintiff’s papers on its motion for reargument shall be deemed its reply. On the facts of this case, we believe that the plaintiff was entitled to be relieved of its default and to serve a reply to the defendants’ counterclaim. The plaintiff’s attorney’s failure to serve the reply was á mere oversight. Counsel acted with immediacy to remedy this situation. Gulotta, P. J., Hopkins, Martuscello and Suozzi, JJ., concur.