Fort Madison Associates v. Caldararo

Appellate Division of the Supreme Court of New York

Fort Madison Associates v. Caldararo

280 A.D.2d 581, 720 N.Y.S.2d 808, 2001 N.Y. App. Div. LEXIS 1634

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

DecidedFebruary 20, 2001

StatusPublished

Cited by1 cases

This text of 280 A.D.2d 581 (Fort Madison Associates v. Caldararo) 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

Fort Madison Associates v. Caldararo, 280 A.D.2d 581, 720 N.Y.S.2d 808, 2001 N.Y. App. Div. LEXIS 1634 (N.Y. Ct. App. 2001).

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Opinion

—In an action to recover damages for conversion, the plaintiff appeals from an order of the Supreme Court, Westchester County (DiBlasi, J.), dated January 12, 2000, which granted the motion of the defendant John Gaidar aro for leave to renew his prior motion to vacate a judgment entered December 8, 1997, upon his default and, upon renewal, granted that motion.

Ordered that the order is reversed, on the law and as a matter of discretion, with costs, the respondent’s motion is denied, and the judgment is reinstated.

A party attempting to vacate a default judgment must establish both a reasonable excuse for the default and a meritorious defense (see, Putney v Pearlman, 203 AD2d 333). While the determination as to whether a party has established a reasonable excuse for a default lies within the sound discretion of the trial court, here the court improvidently exercised its discretion (see, Roussodimou v Zafiriadis, 238 AD2d 568, 569) in accepting law office failure as a reasonable excuse (see, CPLR 2005). The appellant demonstrated a pattern of willful default and neglect by the respondent. Such conduct should not be excused (see, Eretz Funding v Shalosh Assocs., 266 AD2d 184; Roussodimou v Zafiriadis, supra). Accordingly, the order must be reversed and the judgment reinstated. O’Brien, J. P., Friedmann, Gold-stein and Smith, JJ., concur.

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—In an action to recover damages for conversion, the plaintiff appeals from an order of the Supreme Court, Westchester County (DiBlasi, J.), dated January 12, 2000, which granted the motion of the defendant John Gaidar aro for leave to renew his prior motion to vacate a judgment entered December 8, 1997, upon his default and, upon renewal, granted that motion.

Ordered that the order is reversed, on the law and as a matter of discretion, with costs, the respondent’s motion is denied, and the judgment is reinstated.

A party attempting to vacate a default judgment must establish both a reasonable excuse for the default and a meritorious defense (see, Putney v Pearlman, 203 AD2d 333). While the determination as to whether a party has established a reasonable excuse for a default lies within the sound discretion of the trial court, here the court improvidently exercised its discretion (see, Roussodimou v Zafiriadis, 238 AD2d 568, 569) in accepting law office failure as a reasonable excuse (see, CPLR 2005). The appellant demonstrated a pattern of willful default and neglect by the respondent. Such conduct should not be excused (see, Eretz Funding v Shalosh Assocs., 266 AD2d 184; Roussodimou v Zafiriadis, supra). Accordingly, the order must be reversed and the judgment reinstated. O’Brien, J. P., Friedmann, Gold-stein and Smith, JJ., concur.

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Bluebook (online)

280 A.D.2d 581, 720 N.Y.S.2d 808, 2001 N.Y. App. Div. LEXIS 1634, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fort-madison-associates-v-caldararo-nyappdiv-2001.

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