Fromartz v. Bodner

Appellate Division of the Supreme Court of New York

Fromartz v. Bodner

266 A.D.2d 122, 698 N.Y.S.2d 142, 1999 N.Y. App. Div. LEXIS 12106

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

DecidedNovember 23, 1999

StatusPublished

Cited by5 cases

This text of 266 A.D.2d 122 (Fromartz v. Bodner) 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.

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Fromartz v. Bodner, 266 A.D.2d 122, 698 N.Y.S.2d 142, 1999 N.Y. App. Div. LEXIS 12106 (N.Y. Ct. App. 1999).

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Opinion

—Order, Supreme Court, New York County (Harold Tompkins, J.), entered May 28, 1998, denying defendants’ motion to vacate their default, and order, same court and Justice, entered August 25, 1998, directing entry of judgment in the sum of $139,335, unanimously reversed, on the law, the facts, and in the exercise of discretion, without costs, and the motion to vacate granted.

Given our preference for disposition of cases on the merits (see, Santora & McKay v Mazzella, 211 AD2d 460, 463; DFI Communications v Golden Penn Theatre Ticket Serv., 87 AD2d 778, 779), we find that Supreme Court improvidently exercised its discretion in denying defendants’ motion to vacate their default where they had demonstrated both a meritorious defense to this action and a reasonable excuse for their default. In this regard, counsel’s actual engagement in Family Court constituted a reasonable excuse for the default under the circumstances (Abate v Long, 261 AD2d 252; Salerno v Geller, 260 AD2d 153). Concur — Williams, J. P., Rubin, Saxe and Friedman, JJ.

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—Order, Supreme Court, New York County (Harold Tompkins, J.), entered May 28, 1998, denying defendants’ motion to vacate their default, and order, same court and Justice, entered August 25, 1998, directing entry of judgment in the sum of $139,335, unanimously reversed, on the law, the facts, and in the exercise of discretion, without costs, and the motion to vacate granted.

Given our preference for disposition of cases on the merits (see, Santora & McKay v Mazzella, 211 AD2d 460, 463; DFI Communications v Golden Penn Theatre Ticket Serv., 87 AD2d 778, 779), we find that Supreme Court improvidently exercised its discretion in denying defendants’ motion to vacate their default where they had demonstrated both a meritorious defense to this action and a reasonable excuse for their default. In this regard, counsel’s actual engagement in Family Court constituted a reasonable excuse for the default under the circumstances (Abate v Long, 261 AD2d 252; Salerno v Geller, 260 AD2d 153). Concur — Williams, J. P., Rubin, Saxe and Friedman, JJ.

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Bluebook (online)

266 A.D.2d 122, 698 N.Y.S.2d 142, 1999 N.Y. App. Div. LEXIS 12106, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fromartz-v-bodner-nyappdiv-1999.

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