Leucadia, Inc. v. Silverman

100 A.D.2d 823, 474 N.Y.S.2d 758, 1984 N.Y. App. Div. LEXIS 17928

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 24, 1984
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Louis Grossman, J.), entered December 8, 1983 in favor of the plaintiff, unanimously reversed, on the law, on the facts, and in the exercise of discretion, without costs, plaintiff’s motion for a default judgment is denied, and defendant is directed within 20 days after service of a copy of this order to comply with the requirements of CPLR 321 (subd [b]) regulating change of attorneys and to serve his answer within the same period of time. 11A default judgment was entered against defendant apparently on the basis that defendant had failed to serve a timely answer. The record discloses that the defendant had in fact served a timely answer but that it had been rejected by plaintiff’s counsel on the ground that it had been served by counsel not of record, and that there had been no compliance with the requirements of CPLR 321 (subd [b]) regulating change of counsel. U Although plaintiff’s counsel may well have been justified in rejecting the answer for the reason given, we are not persuaded under all the circumstances that the failure to comply with CPLR 321 (subd [b]) justified the entry of a default judgment. The papers before Special Term made it clear that there had been a change of attorneys and that it had been consented to by the original attorney of record. Under the circumstances, the situation presented by defendant’s noncompliance would have been more appropriately responded to by an order directing compliance with CPLR 321 (subd [b]) and fixing the time for such compliance and the service of the answer, f We accordingly reverse, vacate the default judgment, and direct compliance with CPLR 321 (subd [b]) and the new service of an answer. Concur — Kupferman, J. P., Sandler, Fein, Milonas and Kassal, JJ.