Diversified Development Corp. v. Stavitsky

Appellate Division of the Supreme Court of New York

Diversified Development Corp. v. Stavitsky

41 A.D.2d 521, 340 N.Y.S.2d 55, 1973 N.Y. App. Div. LEXIS 5296

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

DecidedJanuary 18, 1973

StatusPublished

This text of 41 A.D.2d 521 (Diversified Development Corp. v. Stavitsky) 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

Diversified Development Corp. v. Stavitsky, 41 A.D.2d 521, 340 N.Y.S.2d 55, 1973 N.Y. App. Div. LEXIS 5296 (N.Y. Ct. App. 1973).

Pincite

Opinion

Order, Supreme Court, New York County, entered on July 16, 1971, denying the motion to vacate the default judgment, unanimously reversed, on the law and the facts and in the exercise of discretion, without costs and without disbursements, and the motion granted, on condition that the defendant, within 20 days of service upon him by respondents of a copy of the order entered herein, with notice of entry thereof, files a bond in the sum of $18,750 and pays $250 costs, and serves his answer and counterclaim. Upon defendant-appellant’s failure to comply with these conditions, within the time limited, the order appealed from is unanimously affirmed and respondents shall recover of appellant $40 costs and disbursements of this appeal. The summons and complaint in this action were served on November 5,1970. The defendant defaulted, in answering for over six weeks from the last extension of time granted by the plaintiff. The plaintiff moved on notice to enter a default judgment pursuant to CPLR 3215 which motion was granted on March 10,1971. Defendant moved to reargue this decision, and reargument was denied on April 14, 1971. An assessment of damages was held. Defendant moved a second time, with new counsel, to vacate the default judgment. On this second motion sufficient possibility of a meritorious defense was shown. The imposition of full punitive damages allowed under section 442-e of the Real Property Law is something which deserves a full plenary hearing on the merits, even absent a fully satis[522]*522factory explanation of the failure of defendant to. answer timely (cf. Sisdlcords do Brazil Ltd. v. Fiacao Brasüiera de 'Sisal, S.'j.'., 34 A D 2d 778)."- Under the circumstances, it was an improvident exercise tif discretion not- to vacate, the default judgment upon appropriate conditions. Appeal from the- order of the. Supreme Court, New York County, entered on April-14,. 1971, • • unanimously dismissed as academic, without costs and without .disbursements. Concur — Kupferman, J. P., Murphy, Lane and Steuer, JJ. ' . •

(Republished)

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

Order, Supreme Court, New York County, entered on July 16, 1971, denying the motion to vacate the default judgment, unanimously reversed, on the law and the facts and in the exercise of discretion, without costs and without disbursements, and the motion granted, on condition that the defendant, within 20 days of service upon him by respondents of a copy of the order entered herein, with notice of entry thereof, files a bond in the sum of $18,750 and pays $250 costs, and serves his answer and counterclaim. Upon defendant-appellant’s failure to comply with these conditions, within the time limited, the order appealed from is unanimously affirmed and respondents shall recover of appellant $40 costs and disbursements of this appeal. The summons and complaint in this action were served on November 5,1970. The defendant defaulted, in answering for over six weeks from the last extension of time granted by the plaintiff. The plaintiff moved on notice to enter a default judgment pursuant to CPLR 3215 which motion was granted on March 10,1971. Defendant moved to reargue this decision, and reargument was denied on April 14, 1971. An assessment of damages was held. Defendant moved a second time, with new counsel, to vacate the default judgment. On this second motion sufficient possibility of a meritorious defense was shown. The imposition of full punitive damages allowed under section 442-e of the Real Property Law is something which deserves a full plenary hearing on the merits, even absent a fully satis[522]*522factory explanation of the failure of defendant to. answer timely (cf. Sisdlcords do Brazil Ltd. v. Fiacao Brasüiera de 'Sisal, S.'j.'., 34 A D 2d 778)."- Under the circumstances, it was an improvident exercise tif discretion not- to vacate, the default judgment upon appropriate conditions. Appeal from the- order of the. Supreme Court, New York County, entered on April-14,. 1971, • • unanimously dismissed as academic, without costs and without .disbursements. Concur — Kupferman, J. P., Murphy, Lane and Steuer, JJ. ' . •

(Republished)

Cite This Page — Counsel Stack

Bluebook (online)

41 A.D.2d 521, 340 N.Y.S.2d 55, 1973 N.Y. App. Div. LEXIS 5296, Counsel Stack Legal Research, https://law.counselstack.com/opinion/diversified-development-corp-v-stavitsky-nyappdiv-1973.