DiPasquale v. Security Mutual Life Insurance

Appellate Division of the Supreme Court of New York

DiPasquale v. Security Mutual Life Insurance

13 A.D.3d 100, 785 N.Y.S.2d 335, 2004 N.Y. App. Div. LEXIS 14816

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

DecidedDecember 7, 2004

StatusPublished

This text of 13 A.D.3d 100 (DiPasquale v. Security Mutual Life Insurance) 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

DiPasquale v. Security Mutual Life Insurance, 13 A.D.3d 100, 785 N.Y.S.2d 335, 2004 N.Y. App. Div. LEXIS 14816 (N.Y. Ct. App. 2004).

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Opinion

Order, Supreme Court, New York County (Paula Omansky, J.), entered October 6, 2003, which denied plaintiffs motion to vacate his default on an earlier dismissal motion for failure to state a cause of action, and to grant leave to amend his complaint, unanimously affirmed, with costs.

In order to vacate a default, a plaintiff must offer a reasonable excuse for the default and demonstrate merit to the complaint. Amendment of a complaint may be denied, in the exercise of discretion, where the proposed amended cause is also without merit (Ava & Co. v Olympic Tower Assoc., 259 AD2d 315, 316 [1999]). The original complaint was clearly without merit, and the proposed amended complaint sought to reinstate a claim that the court had already dismissed on the merits. Concur—Nardelli, J.P., Mazzarelli, Andrias, Friedman and Gonzalez, JJ.

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Order, Supreme Court, New York County (Paula Omansky, J.), entered October 6, 2003, which denied plaintiffs motion to vacate his default on an earlier dismissal motion for failure to state a cause of action, and to grant leave to amend his complaint, unanimously affirmed, with costs.

In order to vacate a default, a plaintiff must offer a reasonable excuse for the default and demonstrate merit to the complaint. Amendment of a complaint may be denied, in the exercise of discretion, where the proposed amended cause is also without merit (Ava & Co. v Olympic Tower Assoc., 259 AD2d 315, 316 [1999]). The original complaint was clearly without merit, and the proposed amended complaint sought to reinstate a claim that the court had already dismissed on the merits. Concur—Nardelli, J.P., Mazzarelli, Andrias, Friedman and Gonzalez, JJ.

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Bluebook (online)

13 A.D.3d 100, 785 N.Y.S.2d 335, 2004 N.Y. App. Div. LEXIS 14816, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dipasquale-v-security-mutual-life-insurance-nyappdiv-2004.

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