Kramer v. Edenwald Construction Co.

Appellate Division of the Supreme Court of New York

Kramer v. Edenwald Construction Co.

261 A.D.2d 284, 690 N.Y.S.2d 259

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

DecidedMay 20, 1999

StatusPublished

Cited by2 cases

This text of 261 A.D.2d 284 (Kramer v. Edenwald Construction Co.) 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

Kramer v. Edenwald Construction Co., 261 A.D.2d 284, 690 N.Y.S.2d 259 (N.Y. Ct. App. 1999).

Pincite

Opinion

—Order, Supreme Court, New York County (Richard Lowe, III, J.), entered on or about February 18, 1998, which, insofar as appealed from, granted plaintiffs’ motion to vacate their default in appearing for oral argument of third-party defendant’s motion for summary judgment dismissing all claims against third-party defendant, and, upon vacatur, denied such motion for summary judgment, unanimously affirmed, without costs.

Plaintiffs’ failure to appear for oral argument of third-party defendant’s motion for summary judgment was properly excused in view of plaintiffs’ timely submission of written opposition to the motion, their attorney’s representation that he was “under the erroneous belief that all motion papers would be marked ‘submitted’ because this was a motion for summary judgment”, the absence of any other indications of an intent on plaintiffs’ part to default in the action or delay it, and the absence of any showing by third-party defendant as to how it was prejudiced by this mistake (CPLR 2005; see, Deshler v East W. Renovators, 259 AD2d 351; Levy v Aquasciences Intl., 179 AD2d 566). On the merits, issues of fact exist as to third-party defendant’s participation and possible negligence in the reconstruction of the street where plaintiff fell. Concur — Sullivan, J. P., Williams, Rubin, Andrias and Friedman, JJ.

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

—Order, Supreme Court, New York County (Richard Lowe, III, J.), entered on or about February 18, 1998, which, insofar as appealed from, granted plaintiffs’ motion to vacate their default in appearing for oral argument of third-party defendant’s motion for summary judgment dismissing all claims against third-party defendant, and, upon vacatur, denied such motion for summary judgment, unanimously affirmed, without costs.

Plaintiffs’ failure to appear for oral argument of third-party defendant’s motion for summary judgment was properly excused in view of plaintiffs’ timely submission of written opposition to the motion, their attorney’s representation that he was “under the erroneous belief that all motion papers would be marked ‘submitted’ because this was a motion for summary judgment”, the absence of any other indications of an intent on plaintiffs’ part to default in the action or delay it, and the absence of any showing by third-party defendant as to how it was prejudiced by this mistake (CPLR 2005; see, Deshler v East W. Renovators, 259 AD2d 351; Levy v Aquasciences Intl., 179 AD2d 566). On the merits, issues of fact exist as to third-party defendant’s participation and possible negligence in the reconstruction of the street where plaintiff fell. Concur — Sullivan, J. P., Williams, Rubin, Andrias and Friedman, JJ.

Cite This Page — Counsel Stack

Bluebook (online)

261 A.D.2d 284, 690 N.Y.S.2d 259, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kramer-v-edenwald-construction-co-nyappdiv-1999.

Opinion

Related

Cite This Page — Counsel Stack