Exact Tool & Die Corp. v. Bittlingmaier

Appellate Division of the Supreme Court of New York

Exact Tool & Die Corp. v. Bittlingmaier

70 A.D.2d 1055, 417 N.Y.S.2d 569, 1979 N.Y. App. Div. LEXIS 12690

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

DecidedJune 1, 1979

StatusPublished

Cited by2 cases

This text of 70 A.D.2d 1055 (Exact Tool & Die Corp. v. Bittlingmaier) 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

Exact Tool & Die Corp. v. Bittlingmaier, 70 A.D.2d 1055, 417 N.Y.S.2d 569, 1979 N.Y. App. Div. LEXIS 12690 (N.Y. Ct. App. 1979).

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Opinion

— Order unanimously reversed, without costs, and motion denied. Memorandum: It was an improvident exercise of Special Term’s discretion to grant plaintiff a default against defendant where defendant’s attorney had effected service of defendant’s answer two days late and appeared before Special Term on defendant’s behalf in opposition [1056]*1056to the motion for a default. The complaint was served on January 16, 1978, service of the answer was due 20 days thereafter (CPLR 3012, subd [a]). By stipulation that date was extended to February 15, 1978. Defendant’s verified answer dated February 16 was served on plaintiff’s attorneys on February 17. The opposition to plaintiff’s motion for a default judgment should have been treated by Special Term, as urged by defendant, as a motion to open the default in pleading (CPLR 2004). So considered, the motion should have been granted since an opportunity to defend and have one’s day in court on the merits is favored as in the interest of justice (Michaud v Loblaws, Inc., 36 AD2d 1013, 1014). (Appeal from order of Monroe Supreme Court — default judgment.) Present — Dillon, P. J., Cardamone, Schnepp, Doerr and Moule, JJ.

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— Order unanimously reversed, without costs, and motion denied. Memorandum: It was an improvident exercise of Special Term’s discretion to grant plaintiff a default against defendant where defendant’s attorney had effected service of defendant’s answer two days late and appeared before Special Term on defendant’s behalf in opposition [1056]*1056to the motion for a default. The complaint was served on January 16, 1978, service of the answer was due 20 days thereafter (CPLR 3012, subd [a]). By stipulation that date was extended to February 15, 1978. Defendant’s verified answer dated February 16 was served on plaintiff’s attorneys on February 17. The opposition to plaintiff’s motion for a default judgment should have been treated by Special Term, as urged by defendant, as a motion to open the default in pleading (CPLR 2004). So considered, the motion should have been granted since an opportunity to defend and have one’s day in court on the merits is favored as in the interest of justice (Michaud v Loblaws, Inc., 36 AD2d 1013, 1014). (Appeal from order of Monroe Supreme Court — default judgment.) Present — Dillon, P. J., Cardamone, Schnepp, Doerr and Moule, JJ.

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Bluebook (online)

70 A.D.2d 1055, 417 N.Y.S.2d 569, 1979 N.Y. App. Div. LEXIS 12690, Counsel Stack Legal Research, https://law.counselstack.com/opinion/exact-tool-die-corp-v-bittlingmaier-nyappdiv-1979.

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