Drawhorn v. Iglesias

254 A.D.2d 97, 679 N.Y.S.2d 282, 1998 N.Y. App. Div. LEXIS 10691

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 13, 1998
• Status: Published

Opinion

Order, Supreme Court, New York County (Jane Solomon, J.), entered October 24, 1997, which, in an action arising out of a car accident involving a police vehicle, denied plaintiffs motion for a default judgment as against defendant police officer, and granted defendants’ cross motion for leave to amend the answer served by defendant City so as to include the police officer as an appearing party thereunder, unanimously affirmed, without costs.

A default judgment against the police officer was properly refused, notwithstanding his failure to submit an affidavit of merit, where the City timely answered in a case based on respondeat superior liability for the acts of an employee who had not requested representation until after the City had answered (see, Vines v Manhattan & Bronx Surface Tr. Operating Auth., 162 AD2d 229). Concur — Milonas, J. P., Rosenberger, Wallach, Tom and Mazzarelli, JJ.