Long Island Trust Co. v. McCabe

Appellate Division of the Supreme Court of New York

Long Island Trust Co. v. McCabe

39 A.D.2d 732, 332 N.Y.S.2d 416, 1972 N.Y. App. Div. LEXIS 4677

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

DecidedMay 8, 1972

StatusPublished

This text of 39 A.D.2d 732 (Long Island Trust Co. v. McCabe) 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

Long Island Trust Co. v. McCabe, 39 A.D.2d 732, 332 N.Y.S.2d 416, 1972 N.Y. App. Div. LEXIS 4677 (N.Y. Ct. App. 1972).

Pincite

Opinion

In an action by an assignee to recover upon a truck lease agreement and a guarantee, in which judgments in favor of plaintiff were entered, upon defendants’ default in answering the complaint, defendants appeal from an order of the Supreme Court, Nassau County, dated November 12, 1970, which denied their motion to vacate the judgments. (Although the motion referred only to the judgment against defendant McCabe, Special Term treated it as one to vacate both judgments.) Order reversed, with $10 costs and disbursements to respondent, motion granted to the extent that defendants’ defaults are opened but the judgments shall stand as security for plaintiff, and on condition that defendants shall give plaintiff an undertaking in the amount of $7,500, with corporate surety, in terms that, if the action terminates in a monetary award in favor of plaintiff, each defendant will pay to plaintiff the amount of such award against it (defendant) or the amount of any amended judgment against it (defendant) based upon such award. The undertaking shall be given and defendants’ answer to the complaint must be served within 10 days after service of a copy of the order to be made hereon, with notice of entry. In our opinion, the facts warrant the granting of defendants’ motion to open their defaults upon the conditions set forth above, since it appears that negotiations for an adjustment were going on during the period of default and that defendants have an arguable defense. Hopkins, Acting P. J., Latham, Shapiro, G-ulotta and Benjamin, JJ., concur.

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In an action by an assignee to recover upon a truck lease agreement and a guarantee, in which judgments in favor of plaintiff were entered, upon defendants’ default in answering the complaint, defendants appeal from an order of the Supreme Court, Nassau County, dated November 12, 1970, which denied their motion to vacate the judgments. (Although the motion referred only to the judgment against defendant McCabe, Special Term treated it as one to vacate both judgments.) Order reversed, with $10 costs and disbursements to respondent, motion granted to the extent that defendants’ defaults are opened but the judgments shall stand as security for plaintiff, and on condition that defendants shall give plaintiff an undertaking in the amount of $7,500, with corporate surety, in terms that, if the action terminates in a monetary award in favor of plaintiff, each defendant will pay to plaintiff the amount of such award against it (defendant) or the amount of any amended judgment against it (defendant) based upon such award. The undertaking shall be given and defendants’ answer to the complaint must be served within 10 days after service of a copy of the order to be made hereon, with notice of entry. In our opinion, the facts warrant the granting of defendants’ motion to open their defaults upon the conditions set forth above, since it appears that negotiations for an adjustment were going on during the period of default and that defendants have an arguable defense. Hopkins, Acting P. J., Latham, Shapiro, G-ulotta and Benjamin, JJ., concur.

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Bluebook (online)

39 A.D.2d 732, 332 N.Y.S.2d 416, 1972 N.Y. App. Div. LEXIS 4677, Counsel Stack Legal Research, https://law.counselstack.com/opinion/long-island-trust-co-v-mccabe-nyappdiv-1972.