Jolicoeur v. Clinton Co-operative Insurance

50 A.D.2d 621, 375 N.Y.S.2d 44, 1975 N.Y. App. Div. LEXIS 12423

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 6, 1975
• Status: Published

Opinion

— Appeal from an order of the Supreme Court at Special Term, entered December 19, 1974 in Clinton County, which granted defendant’s motion to vacate a judgment by default in favor of plaintiff. Defendant moved to be relieved of its default promptly after discovering that a judgment had been obtained against it by reason of its failure to file a notice of appearance and it sufficiently alleged a meritorious defense to the action. Furthermore, its default was not deliberate or willful and plaintiff has not been unduly prejudiced. Under the circumstances presented, granting the motion to open the default was a matter within the proper exercise of Special Term’s discretion and should not be disturbed (CPLR 5015, subd fa], par 1; Le Cesse v Giancursio, 38 AD2d 873; Bouxsein v Bialo, 35 AD2d 523; Wall v Bennett, 33 AD2d 827). Order affirmed, without costs. Herlihy, P. J., Greenblott, Kane, Main and Larkin, JJ., concur.