Foos v. Tripet Construction Co.

25 A.D.2d 614, 267 N.Y.S.2d 644, 1966 N.Y. App. Div. LEXIS 4891

Opinion

Order unanimously reversed, with costs and motion denied. Memorandum: The opening of defendant’s default in appearing was an improvident exercise of discretion. The summons was served on October 9, 1962 and came into the possession of one Hall, the manager of a claims office of defendant’s insurance carrier. For the next 22 months Hall carried on desultory settlement negotiations with plaintiff’s attorney. In July, 1963, according to Hall’s affidavit, appellant’s counsel requested that the summons be referred to an attorney “to put in an appearance”. This was not done and the matter “remained dormant” for another 10 months. Defendant’s carrier by its gross negligence has forfeited its right to affirmative relief. Its representative not only neglected to turn over the summons to an attorney but with studied indifference ignored the request of plaintiff’s counsel to do so. The position in which the carrier finds itself is of its own making. (Appeal from order of Monroe Special Term granting defendant’s motion to reopen default.)

Present — Williams, P. J., Bastow, Goldman, Henry and Del Yecehio, JJ.