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

Appellate Division of the Supreme Court of the State of New York·Decided November 23, 1999·Published·Cited by 5 cases

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.

Free access — add to your briefcase to read the full text and ask questions with AI

—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.

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).

Pincite

266 A.D.2d 122 (Fromartz v. Bodner) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

Related