Fuchs v. Midali America Corp.

Appellate Division of the Supreme Court of New York

Fuchs v. Midali America Corp.

260 A.D.2d 318, 689 N.Y.S.2d 80, 1999 N.Y. App. Div. LEXIS 4370

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

DecidedApril 29, 1999

StatusPublished

Cited by2 cases

This text of 260 A.D.2d 318 (Fuchs v. Midali America Corp.) 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

Fuchs v. Midali America Corp., 260 A.D.2d 318, 689 N.Y.S.2d 80, 1999 N.Y. App. Div. LEXIS 4370 (N.Y. Ct. App. 1999).

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Opinion

—Order, Supreme Court, New York County (Ira Gammerman, J.), entered May 26, 1998, which denied defendants’ motion to vacate the default judgment entered against them on March 26, 1998, unanimously modified, on the law and the facts, to vacate the judgment insofar as it awards damages but not insofar as it recites that defendants’ answer has been struck by order entered March 25, 1998, and to remand the matter for a hearing on the issue of plaintiffs’ damages, and otherwise affirmed, without costs. Appeal from judgment, same court and Justice, entered March 26, 1998, unanimously dismissed, without costs, as academic in view of the foregoing.

Defendants do not show a reasonable excuse for their failure to appear on two scheduled trial dates. They do not explain why some indication of their scheduling needs could not have been conveyed to the court, if not through their attorney of record, then through covering counsel (see, Teachers Ins. & Annuity Assn. v Code Beta Group, 204 AD2d 193). However, as the damages are unliquidated, defendants are entitled to a hearing thereon, and we modify accordingly (see, Rokina Opt. Co. v Camera King, 63 NY2d 728). Concur — Nardelli, J. P., Tom, Lerner, Mazzarelli and Friedman, JJ.

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—Order, Supreme Court, New York County (Ira Gammerman, J.), entered May 26, 1998, which denied defendants’ motion to vacate the default judgment entered against them on March 26, 1998, unanimously modified, on the law and the facts, to vacate the judgment insofar as it awards damages but not insofar as it recites that defendants’ answer has been struck by order entered March 25, 1998, and to remand the matter for a hearing on the issue of plaintiffs’ damages, and otherwise affirmed, without costs. Appeal from judgment, same court and Justice, entered March 26, 1998, unanimously dismissed, without costs, as academic in view of the foregoing.

Defendants do not show a reasonable excuse for their failure to appear on two scheduled trial dates. They do not explain why some indication of their scheduling needs could not have been conveyed to the court, if not through their attorney of record, then through covering counsel (see, Teachers Ins. & Annuity Assn. v Code Beta Group, 204 AD2d 193). However, as the damages are unliquidated, defendants are entitled to a hearing thereon, and we modify accordingly (see, Rokina Opt. Co. v Camera King, 63 NY2d 728). Concur — Nardelli, J. P., Tom, Lerner, Mazzarelli and Friedman, JJ.

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Bluebook (online)

260 A.D.2d 318, 689 N.Y.S.2d 80, 1999 N.Y. App. Div. LEXIS 4370, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fuchs-v-midali-america-corp-nyappdiv-1999.

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