Gause v. 2405 Marion Corp.

Appellate Division of the Supreme Court of New York

Gause v. 2405 Marion Corp.

2017 NY Slip Op 6998, 154 A.D.3d 453, 61 N.Y.S.3d 473

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

DecidedOctober 5, 2017

Docket550 303876/12

StatusPublished

This text of 2017 NY Slip Op 6998 (Gause v. 2405 Marion 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

Gause v. 2405 Marion Corp., 2017 NY Slip Op 6998, 154 A.D.3d 453, 61 N.Y.S.3d 473 (N.Y. Ct. App. 2017).

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Opinion

Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered April 10, 2015, which, to the extent appealed from, granted plaintiffs motion for a default judgment as against defendant 2405 Marion Corp. (Marion), and denied Marion’s cross motion to dismiss the action as abandoned pursuant to CPLR 3215 (c), unanimously modified, on the law, to deny plaintiffs motion, and to grant Marion’s cross motion solely to the extent of permitting Marion to file a late answer within 30 days from service of a copy of this order with notice of entry, and otherwise affirmed, without costs.

Supreme Court did not abuse its discretion in finding that plaintiff had made a sufficient showing of law office failure to excuse its failure to move for a default judgment within one year (see Riccardi v Otero, 33 AD3d 571 [1st Dept 2006]). However, as the record reflects that Marion promptly responded to correspondence from plaintiff and sought to investigate the claim, and there being reason to believe that it did not receive the summons and complaint, we believe that Marion should be permitted to file a late answer.

Concur — Friedman, J.P., Richter, Andrias and Kapnick, JJ.

The Decision and Order of this Court entered herein on March 22, 2016 (137 AD3d 598 [2016]) is hereby recalled and vacated (see 2017 NY Slip Op 88002 [U] [2017] [decided simultaneously herewith]).

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Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered April 10, 2015, which, to the extent appealed from, granted plaintiffs motion for a default judgment as against defendant 2405 Marion Corp. (Marion), and denied Marion’s cross motion to dismiss the action as abandoned pursuant to CPLR 3215 (c), unanimously modified, on the law, to deny plaintiffs motion, and to grant Marion’s cross motion solely to the extent of permitting Marion to file a late answer within 30 days from service of a copy of this order with notice of entry, and otherwise affirmed, without costs.

Supreme Court did not abuse its discretion in finding that plaintiff had made a sufficient showing of law office failure to excuse its failure to move for a default judgment within one year (see Riccardi v Otero, 33 AD3d 571 [1st Dept 2006]). However, as the record reflects that Marion promptly responded to correspondence from plaintiff and sought to investigate the claim, and there being reason to believe that it did not receive the summons and complaint, we believe that Marion should be permitted to file a late answer.

Concur — Friedman, J.P., Richter, Andrias and Kapnick, JJ.

The Decision and Order of this Court entered herein on March 22, 2016 (137 AD3d 598 [2016]) is hereby recalled and vacated (see 2017 NY Slip Op 88002 [U] [2017] [decided simultaneously herewith]).

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Bluebook (online)

2017 NY Slip Op 6998, 154 A.D.3d 453, 61 N.Y.S.3d 473, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gause-v-2405-marion-corp-nyappdiv-2017.

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