Hall v. Hall

Appellate Division of the Supreme Court of New York

Hall v. Hall

88 A.D.2d 1009, 451 N.Y.S.2d 933, 1982 N.Y. App. Div. LEXIS 17421

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

DecidedJune 3, 1982

StatusPublished

This text of 88 A.D.2d 1009 (Hall v. Hall) 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

Hall v. Hall, 88 A.D.2d 1009, 451 N.Y.S.2d 933, 1982 N.Y. App. Div. LEXIS 17421 (N.Y. Ct. App. 1982).

Pincite

Opinion

— Appeal from an order of the Supreme Court at Trial Term (Harlem, J.), entered August 3,1981 in Cortland County, which, inter alia, denied plaintiff’s motion to vacate his default in proceeding to trial and granted defendant judgment on his counterclaims. This instant case, which was originally set for trial on December 1, 1980, was adjourned to December 29,1980, April 20,1981, July 13,1981, and [1010]*1010July 20, 1981, at plaintiff’s request. When neither plaintiff nor his counsel appeared for trial on July 20,1981, Trial Term dismissed plaintiff’s complaint and set July 27, 1981 as the date for defendant to proceed upon his counterclaims. On July 27, 1981, plaintiff’s counsel appeared and made an oral application before Trial Term to vacate the default. This motion was denied and the instant appeal ensued. Plaintiff’s initial argument is that Trial Term’s dismissal of his complaint was inconsistent with the provisions of CPLR 3404. This argument, however, is without merit since a review of the record reveals that the instant dismissal was based upon CPLR 3216 (subd [a]). This being the case, CPLR 3404 is inapplicable (see CPLR 3216, subd [fj; 4 Weinstein-Korn-Miller, NY Civ Prac, par 3216.25). Plaintiff’s second and final argument is that Trial Term abused its discretion in denying his application to vacate the default. This argument is also meritless. In order to vacate the default in this action, it was incumbent upon plaintiff to show that the default was excusable and that he has a meritorious claim (see 5 Weinstein-Korn-Miller, NY Civ Prac, par 5015.04). Plaintiff failed to even make an attempt to demonstrate the existence of a meritorious claim. The order must, therefore, be affirmed. Order affirmed, with costs. Kane, J. P., Main, Casey, Mikoll and Yesawich, Jr., JJ., concur.

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— Appeal from an order of the Supreme Court at Trial Term (Harlem, J.), entered August 3,1981 in Cortland County, which, inter alia, denied plaintiff’s motion to vacate his default in proceeding to trial and granted defendant judgment on his counterclaims. This instant case, which was originally set for trial on December 1, 1980, was adjourned to December 29,1980, April 20,1981, July 13,1981, and [1010]*1010July 20, 1981, at plaintiff’s request. When neither plaintiff nor his counsel appeared for trial on July 20,1981, Trial Term dismissed plaintiff’s complaint and set July 27, 1981 as the date for defendant to proceed upon his counterclaims. On July 27, 1981, plaintiff’s counsel appeared and made an oral application before Trial Term to vacate the default. This motion was denied and the instant appeal ensued. Plaintiff’s initial argument is that Trial Term’s dismissal of his complaint was inconsistent with the provisions of CPLR 3404. This argument, however, is without merit since a review of the record reveals that the instant dismissal was based upon CPLR 3216 (subd [a]). This being the case, CPLR 3404 is inapplicable (see CPLR 3216, subd [fj; 4 Weinstein-Korn-Miller, NY Civ Prac, par 3216.25). Plaintiff’s second and final argument is that Trial Term abused its discretion in denying his application to vacate the default. This argument is also meritless. In order to vacate the default in this action, it was incumbent upon plaintiff to show that the default was excusable and that he has a meritorious claim (see 5 Weinstein-Korn-Miller, NY Civ Prac, par 5015.04). Plaintiff failed to even make an attempt to demonstrate the existence of a meritorious claim. The order must, therefore, be affirmed. Order affirmed, with costs. Kane, J. P., Main, Casey, Mikoll and Yesawich, Jr., JJ., concur.

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Bluebook (online)

88 A.D.2d 1009, 451 N.Y.S.2d 933, 1982 N.Y. App. Div. LEXIS 17421, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hall-v-hall-nyappdiv-1982.