Ebrahimian v. Champion Leather Corp.

Appellate Division of the Supreme Court of New York

Ebrahimian v. Champion Leather Corp.

73 A.D.2d 883, 424 N.Y.S.2d 8, 1980 N.Y. App. Div. LEXIS 9786

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

DecidedJanuary 22, 1980

StatusPublished

This text of 73 A.D.2d 883 (Ebrahimian v. Champion Leather 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.

Bluebook

Ebrahimian v. Champion Leather Corp., 73 A.D.2d 883, 424 N.Y.S.2d 8, 1980 N.Y. App. Div. LEXIS 9786 (N.Y. Ct. App. 1980).

Pincite

Opinion

— Order, Supreme Court, New York County, entered February 14, 1979, as modified by order dated March 21, 1979, denying defendant’s motion to vacate default judgment, is unanimously reversed, in the exercise of discretion, and said default judgment is vacated and defendant is granted leave to serve its verified answer contained in the record on appeal on condition that within 20 days after service of the order entered hereon, and simultaneously with the service of its answer, defendant shall pay to plaintiff $250 in costs in addition to the costs and disbursements of this appeal; and should such payment of costs not be made as specified, the order is affirmed, with costs. While defendant’s affidavit of merits leaves much to be desired, the default arises from service of an answer two days late. We are reluctant to deprive defendant of its opportunity to defend the case and to impose so severe a penalty as a default judgment for $34,576 for so minor a default. On the other hand, particularly in view of the conclusory nature of the showing of merits by defendant, some sanction for the default is appropriate. Our present determination is no indication of our views as to whether defendant has presented an issue of fact sufficient to defeat a motion for summary judgment if made. Concur — Murphy, P. J., Birns, Markewich, Lupiano and Silverman, JJ.

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— Order, Supreme Court, New York County, entered February 14, 1979, as modified by order dated March 21, 1979, denying defendant’s motion to vacate default judgment, is unanimously reversed, in the exercise of discretion, and said default judgment is vacated and defendant is granted leave to serve its verified answer contained in the record on appeal on condition that within 20 days after service of the order entered hereon, and simultaneously with the service of its answer, defendant shall pay to plaintiff $250 in costs in addition to the costs and disbursements of this appeal; and should such payment of costs not be made as specified, the order is affirmed, with costs. While defendant’s affidavit of merits leaves much to be desired, the default arises from service of an answer two days late. We are reluctant to deprive defendant of its opportunity to defend the case and to impose so severe a penalty as a default judgment for $34,576 for so minor a default. On the other hand, particularly in view of the conclusory nature of the showing of merits by defendant, some sanction for the default is appropriate. Our present determination is no indication of our views as to whether defendant has presented an issue of fact sufficient to defeat a motion for summary judgment if made. Concur — Murphy, P. J., Birns, Markewich, Lupiano and Silverman, JJ.

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Bluebook (online)

73 A.D.2d 883, 424 N.Y.S.2d 8, 1980 N.Y. App. Div. LEXIS 9786, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ebrahimian-v-champion-leather-corp-nyappdiv-1980.