Damselle, Ltd. v. 500-512 Seventh Avenue Associates

Appellate Division of the Supreme Court of New York

Damselle, Ltd. v. 500-512 Seventh Avenue Associates

184 A.D.2d 367, 584 N.Y.S.2d 846, 1992 N.Y. App. Div. LEXIS 8143

Appellate Division of the Supreme Court of the State of New York·Decided June 18, 1992·Published·Cited by 9 cases

Opinion

Order, Supreme Court, New York County (Beverly Cohen, J.), entered April 4, 1991, which granted the motion of defendant Holmes Protection of New York, Inc., to vacate a default judgment on condition that its attorneys pay plaintiff $1,500, unanimously modified, on the law, the facts and in the exercise of discretion, to increase the amount to which plaintiff is entitled to $3,000, and otherwise affirmed, without costs.

In light of the strong policy favoring the determination of actions on their merits (Scott v Allstate Ins. Co., 124 AD2d 481, 484), we find no abuse of discretion in vacatur of the within default judgment upon defendant-respondent’s showing of an unintentional failure by defendant-respondent’s insurer to defend the action, lack of prejudice to plaintiff, and the existence of a potentially meritorious defense (Massachusetts Bay Ins. Co. v Guardian Escrow Corp., 171 AD2d 615, 616). We agree with the IAS court that, as a condition to the vacatur of [368] the default, plaintiff should be compensated for the inconvenience caused by defendant-respondent’s insurer’s egregious inefficiency (see, Aces Mech. Corp. v Cohen Bros. Realty & Constr. Corp., 99 AD2d 455). Moreover, under the circumstances of this case, we find that, in order to adequately compensate plaintiff, the amount should be raised to $3,000. Concur — Ellerin, J. P., Kupferman, Asch and Kassal, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

Order, Supreme Court, New York County (Beverly Cohen, J.), entered April 4, 1991, which granted the motion of defendant Holmes Protection of New York, Inc., to vacate a default judgment on condition that its attorneys pay plaintiff $1,500, unanimously modified, on the law, the facts and in the exercise of discretion, to increase the amount to which plaintiff is entitled to $3,000, and otherwise affirmed, without costs.

In light of the strong policy favoring the determination of actions on their merits (Scott v Allstate Ins. Co., 124 AD2d 481, 484), we find no abuse of discretion in vacatur of the within default judgment upon defendant-respondent’s showing of an unintentional failure by defendant-respondent’s insurer to defend the action, lack of prejudice to plaintiff, and the existence of a potentially meritorious defense (Massachusetts Bay Ins. Co. v Guardian Escrow Corp., 171 AD2d 615, 616). We agree with the IAS court that, as a condition to the vacatur of [368] the default, plaintiff should be compensated for the inconvenience caused by defendant-respondent’s insurer’s egregious inefficiency (see, Aces Mech. Corp. v Cohen Bros. Realty & Constr. Corp., 99 AD2d 455). Moreover, under the circumstances of this case, we find that, in order to adequately compensate plaintiff, the amount should be raised to $3,000. Concur — Ellerin, J. P., Kupferman, Asch and Kassal, JJ.

Damselle, Ltd. v. 500-512 Seventh Avenue Associates, 184 A.D.2d 367, 584 N.Y.S.2d 846, 1992 N.Y. App. Div. LEXIS 8143 (N.Y. Ct. App. 1992).

Pincite

184 A.D.2d 367 (Damselle, Ltd. v. 500-512 Seventh Avenue Associates) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

Related