Emery Roth & Sons v. National Kinney Corp.

Appellate Division of the Supreme Court of New York

Emery Roth & Sons v. National Kinney Corp.

67 A.D.2d 621, 412 N.Y.S.2d 137, 1979 N.Y. App. Div. LEXIS 10145

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

DecidedJanuary 4, 1979

StatusPublished

Cited by1 cases

This text of 67 A.D.2d 621 (Emery Roth & Sons v. National Kinney 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

Emery Roth & Sons v. National Kinney Corp., 67 A.D.2d 621, 412 N.Y.S.2d 137, 1979 N.Y. App. Div. LEXIS 10145 (N.Y. Ct. App. 1979).

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Opinions

— Order, Supreme Court, New York County, entered June 22, 1978, confirming the report of the Special Referee recommending that the defendant Prudential Building Maintenance Corporation be granted leave to serve an answer, affirmed, without costs or disbursements. If the answer has not yet been served, then service shall be made within 10 days of service of a copy of this order with notice of entry. The initial motion to enter a judgment by default was granted by Special Term to the extent of directing a reference on "the issues as to the service of a complaint and the circumstances attending the failure to interpose an answer.” The reference was held, and the Referee recommended that the defendant Prudential be permitted to interpose an answer. Special Term confirmed the report and recommendation of the Referee. Implicit in the brief report of the Referee was a finding that Prudential was not served with a complaint and therefore could not be in default in answering. Under the circumstances, an affidavit of merits is not necessary. In any event, when the plaintiff has shown no prejudice to its cause, the policy of this court favors disposition of actions on the merits (Zissu, Lore, Halper & Robson v Siegel, 60 AD2d 531, 532). Concur — Lane and Markewich, JJ.; Silverman, J., concurs in a memorandum and Kupferman, J. P., dissents in a memorandum as follows:

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— Order, Supreme Court, New York County, entered June 22, 1978, confirming the report of the Special Referee recommending that the defendant Prudential Building Maintenance Corporation be granted leave to serve an answer, affirmed, without costs or disbursements. If the answer has not yet been served, then service shall be made within 10 days of service of a copy of this order with notice of entry. The initial motion to enter a judgment by default was granted by Special Term to the extent of directing a reference on "the issues as to the service of a complaint and the circumstances attending the failure to interpose an answer.” The reference was held, and the Referee recommended that the defendant Prudential be permitted to interpose an answer. Special Term confirmed the report and recommendation of the Referee. Implicit in the brief report of the Referee was a finding that Prudential was not served with a complaint and therefore could not be in default in answering. Under the circumstances, an affidavit of merits is not necessary. In any event, when the plaintiff has shown no prejudice to its cause, the policy of this court favors disposition of actions on the merits (Zissu, Lore, Halper & Robson v Siegel, 60 AD2d 531, 532). Concur — Lane and Markewich, JJ.; Silverman, J., concurs in a memorandum and Kupferman, J. P., dissents in a memorandum as follows:

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Bluebook (online)

67 A.D.2d 621, 412 N.Y.S.2d 137, 1979 N.Y. App. Div. LEXIS 10145, Counsel Stack Legal Research, https://law.counselstack.com/opinion/emery-roth-sons-v-national-kinney-corp-nyappdiv-1979.

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