Desocio v. Fifth Avenue & Fifty Ninth Corp.

Appellate Division of the Supreme Court of New York

Desocio v. Fifth Avenue & Fifty Ninth Corp.

262 A.D.2d 67, 689 N.Y.S.2d 636, 1999 N.Y. App. Div. LEXIS 6452

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

DecidedJune 8, 1999

StatusPublished

This text of 262 A.D.2d 67 (Desocio v. Fifth Avenue & Fifty Ninth Corp.) 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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Desocio v. Fifth Avenue & Fifty Ninth Corp., 262 A.D.2d 67, 689 N.Y.S.2d 636, 1999 N.Y. App. Div. LEXIS 6452 (N.Y. Ct. App. 1999).

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Opinion

—Order, Supreme Court, New York County (Lorraine Miller, J.), entered April 24, 1998, which, inter alia, denied plaintiffs’ motion to vacate a prior order of the same court, entered March 17, 1998 on plaintiffs’ default, unanimously affirmed, without costs. Appeals from the order, same court and Justice, entered March 17, 1998, which, upon plaintiffs’ default, granted defendants’ motion for summary judgment dismissing the complaint, and from the ensuing judgment, same court and Justice, entered April 27, 1998, unanimously dismissed, without costs, as no appeal lies from papers entered upon appellant’s default.

Plaintiffs’ motion to vacate their default in responding to defendants’ summary judgment motion was properly denied in light of plaintiffs’ failure to make the requisite demonstration that their action possessed merit (see, M.D. & Son Contr. v American Props., 179 AD2d 519). Particularly noteworthy in this regard was the circumstance that plaintiff’s deposition [68]*68testimony as to the manner in which his accident occurred contradicted his pleadings. Concur — Williams, J. P., Wallach, Andrias and Friedman, JJ.

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—Order, Supreme Court, New York County (Lorraine Miller, J.), entered April 24, 1998, which, inter alia, denied plaintiffs’ motion to vacate a prior order of the same court, entered March 17, 1998 on plaintiffs’ default, unanimously affirmed, without costs. Appeals from the order, same court and Justice, entered March 17, 1998, which, upon plaintiffs’ default, granted defendants’ motion for summary judgment dismissing the complaint, and from the ensuing judgment, same court and Justice, entered April 27, 1998, unanimously dismissed, without costs, as no appeal lies from papers entered upon appellant’s default.

Plaintiffs’ motion to vacate their default in responding to defendants’ summary judgment motion was properly denied in light of plaintiffs’ failure to make the requisite demonstration that their action possessed merit (see, M.D. & Son Contr. v American Props., 179 AD2d 519). Particularly noteworthy in this regard was the circumstance that plaintiff’s deposition [68]*68testimony as to the manner in which his accident occurred contradicted his pleadings. Concur — Williams, J. P., Wallach, Andrias and Friedman, JJ.

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Bluebook (online)

262 A.D.2d 67, 689 N.Y.S.2d 636, 1999 N.Y. App. Div. LEXIS 6452, Counsel Stack Legal Research, https://law.counselstack.com/opinion/desocio-v-fifth-avenue-fifty-ninth-corp-nyappdiv-1999.

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