D'Agostino v. Franklin

Appellate Division of the Supreme Court of New York

D'Agostino v. Franklin

2 A.D.3d 666, 768 N.Y.S.2d 636

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

DecidedDecember 22, 2003

StatusPublished

This text of 2 A.D.3d 666 (D'Agostino v. Franklin) 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.

Bluebook

D'Agostino v. Franklin, 2 A.D.3d 666, 768 N.Y.S.2d 636 (N.Y. Ct. App. 2003).

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Opinion

—In an action to recover damages for fraudulent misrepresentation, the plaintiff appeals from (1) an order of the Supreme Court, Westchester County (Colabella, J.), entered January 30, 2003, which denied his motion for leave to enter a judgment against the defendants upon their failure to appear or answer, and (2) an order of the same court dated June 17, 2003, which granted the defendants’ motion to vacate their default in appearing or answering.

Ordered that the orders are affirmed, with one bill of costs.

It is well established that a party seeking to vacate a default in answering or appearing must make a showing of a justifiable excuse for the default, and a meritorious defense (see Hazen v Bottiglieri, 286 AD2d 708 [2001]; Miles v Blue Label Trucking, 232 AD2d 382 [1996]). In this case, the defendants made a sufficient showing of both a justifiable excuse and a meritorious defense. In addition, there was no prejudice to the plaintiff as a result of the relatively short delay. Altman, J.P., S. Miller, McGinity, Adams and Mastro, JJ., concur.

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—In an action to recover damages for fraudulent misrepresentation, the plaintiff appeals from (1) an order of the Supreme Court, Westchester County (Colabella, J.), entered January 30, 2003, which denied his motion for leave to enter a judgment against the defendants upon their failure to appear or answer, and (2) an order of the same court dated June 17, 2003, which granted the defendants’ motion to vacate their default in appearing or answering.

Ordered that the orders are affirmed, with one bill of costs.

It is well established that a party seeking to vacate a default in answering or appearing must make a showing of a justifiable excuse for the default, and a meritorious defense (see Hazen v Bottiglieri, 286 AD2d 708 [2001]; Miles v Blue Label Trucking, 232 AD2d 382 [1996]). In this case, the defendants made a sufficient showing of both a justifiable excuse and a meritorious defense. In addition, there was no prejudice to the plaintiff as a result of the relatively short delay. Altman, J.P., S. Miller, McGinity, Adams and Mastro, JJ., concur.

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Bluebook (online)

2 A.D.3d 666, 768 N.Y.S.2d 636, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dagostino-v-franklin-nyappdiv-2003.

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