Hallum v. S & L Jewelry

79 A.D.2d 565, 433 N.Y.S.2d 791, 1980 N.Y. App. Div. LEXIS 13879

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 16, 1980
• Status: Published

Opinion

Order, Supreme Court, New York County, entered May 2, 1980, granting the plaintiff’s motion to confirm a referee’s report (Mazur), which found the defendant to have been properly served with process, and denying the defendant’s cross motion to strike the action from the Inquest Calendar, modified, on the law and the facts, to grant the cross motion and directing the defendant to serve an answer within 30 days from the date of the order, and otherwise affirmed, without costs. This action arises from an alleged assault on the plaintiff by the defendant owner of a jewelry establishment in the defendant’s premises. The owners, aged people, were charged in Criminal Court with assault, which criminal charge was dismissed. Plaintiff’s civil action for damages commenced in Kings County, the plaintiff’s residence, was also dismissed. The within action was commenced by service of a summons with notice. The defendant defaulted, and the plaintiff put the matter on the Inquest Calendar. The defendant sought leave to file an answer and to strike the action from the Inquest Calendar, asserting improper service of process and denying the offense. While it seems there was proper service and thus jurisdiction was obtained, there was an improvident exercise of discretion in refusing to permit the opening of the default. It was obvious that the defendant contested the allegations, and there should be an opportunity for a trial. Concur—Kupferman, J. P., Birns, Fein, Sandler and Lynch, JJ.