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

Appellate Division of the Supreme Court of the State of New York·Decided January 4, 1979·Published·Cited by 1 cases

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:

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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