Frank Mar Construction Corp. v. Precision Partners Realty Corp.

284 A.D.2d 496, 726 N.Y.S.2d 580, 2001 N.Y. App. Div. LEXIS 6781

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 25, 2001
• Status: Published

Opinion

—In an action to impose a constructive trust on certain real property to the extent of $15,000, the defendant appeals from (1) an order of the Supreme Court, Westchester County (Lefkowitz, J.), dated June 12, 2000, which denied its motion pursuant to CPLR 3012 (d) to compel acceptance of its late answer, and (2) a judgment of the same court, dated July 24, 2000, which is in favor of the plaintiff and against it imposing a constructive trust upon the subject real property to the extent of $15,000.

Ordered that the appeal from the order is dismissed; and it is further,

Ordered that the judgment is reversed, as a matter of discretion, the order is vacated, the motion is granted, and the matter is remitted to the Supreme Court, Westchester County, for further proceedings; and it is further,

Ordered that the appellant is awarded one bill of costs.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 NY2d 241, 248). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (see, CPLR 5501 [a] [1]).

To prevail on its motion to compel acceptance of its late answer, the defendant was obligated to demonstrate a reasonable excuse for the delay (see, CPLR 3012 [d]). Under the facts of this case, the excuse offered by the defendant was reasonable, and thus, the defendant’s motion should have been granted. Ritter, J. P., Altman, McGinity, Smith and Cozier, JJ., concur.