Hutchinson Burger, Inc. v. Bradshaw

Appellate Division of the Supreme Court of New York

Hutchinson Burger, Inc. v. Bradshaw

2017 NY Slip Op 2935, 149 A.D.3d 545, 50 N.Y.S.3d 267

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

DecidedApril 18, 2017

Docket3749 302046/11

StatusPublished

Cited by4 cases

This text of 2017 NY Slip Op 2935 (Hutchinson Burger, Inc. v. Bradshaw) 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

Hutchinson Burger, Inc. v. Bradshaw, 2017 NY Slip Op 2935, 149 A.D.3d 545, 50 N.Y.S.3d 267 (N.Y. Ct. App. 2017).

Pincite

Opinion

Order, Supreme Court, Bronx County (Julia Rodriguez, J.), entered December 10, 2015, which granted defendant Kathleen R. Bradshaw’s motion for reargument, and, upon reargument, denied plaintiffs’ motion for an extension of time to serve the summons, complaint, and amended complaint and for a default judgment against defendant, and dismissed all claims against defendant, without prejudice, unanimously reversed, on the law, without costs, and defendant’s motion denied in all respects.

The proper vehicle for defendant to challenge the October 2012 order, which was granted on her default, was a motion to vacate a default order under CPLR 5015 (a) (1), and not a motion for renewal or reargument under CPLR 2221 (d) and (e) (see Country Wide Home Loans, Inc. v Dunia, 138 AD3d 533, 533 [1st Dept 2016] [“The court properly denied plaintiff’s motion since the prior order was granted on default, and the proper remedy for plaintiff was to move to vacate the default pursuant to CPLR 5015, rather than by motion to renew”]; 300 W. 46th St. Corp. v Clinton Hous. W. 46th St. Partners, L.P., 19 AD3d 136 [1st Dept 2005]; Vasquez v Koret, Inc., 151 AD2d 448 *546 [1st Dept 1989]; Siegel, NY Prac § 426). Accordingly, the motion court should have denied defendant’s motion to renew or reargue.

Concur — Sweeny, J.P., Richter, Andrias, Webber and Gesmer, JJ.

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

Order, Supreme Court, Bronx County (Julia Rodriguez, J.), entered December 10, 2015, which granted defendant Kathleen R. Bradshaw’s motion for reargument, and, upon reargument, denied plaintiffs’ motion for an extension of time to serve the summons, complaint, and amended complaint and for a default judgment against defendant, and dismissed all claims against defendant, without prejudice, unanimously reversed, on the law, without costs, and defendant’s motion denied in all respects.

The proper vehicle for defendant to challenge the October 2012 order, which was granted on her default, was a motion to vacate a default order under CPLR 5015 (a) (1), and not a motion for renewal or reargument under CPLR 2221 (d) and (e) (see Country Wide Home Loans, Inc. v Dunia, 138 AD3d 533, 533 [1st Dept 2016] [“The court properly denied plaintiff’s motion since the prior order was granted on default, and the proper remedy for plaintiff was to move to vacate the default pursuant to CPLR 5015, rather than by motion to renew”]; 300 W. 46th St. Corp. v Clinton Hous. W. 46th St. Partners, L.P., 19 AD3d 136 [1st Dept 2005]; Vasquez v Koret, Inc., 151 AD2d 448 *546 [1st Dept 1989]; Siegel, NY Prac § 426). Accordingly, the motion court should have denied defendant’s motion to renew or reargue.

Concur — Sweeny, J.P., Richter, Andrias, Webber and Gesmer, JJ.

Cite This Page — Counsel Stack

Bluebook (online)

2017 NY Slip Op 2935, 149 A.D.3d 545, 50 N.Y.S.3d 267, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hutchinson-burger-inc-v-bradshaw-nyappdiv-2017.

Opinion

Related

Cite This Page — Counsel Stack