Lui v. Arias

Appellate Division of the Supreme Court of New York

Lui v. Arias

287 A.D.2d 378, 731 N.Y.S.2d 615, 2001 N.Y. App. Div. LEXIS 9890

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

DecidedOctober 23, 2001

StatusPublished

This text of 287 A.D.2d 378 (Lui v. Arias) 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

Lui v. Arias, 287 A.D.2d 378, 731 N.Y.S.2d 615, 2001 N.Y. App. Div. LEXIS 9890 (N.Y. Ct. App. 2001).

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Opinion

—Order, Supreme Court, Bronx County (Stanley Green, J.), entered August 28, 2000, which granted defendant-respondent’s motion to vacate an order granting plaintiffs motion to strike defendant’s answer on default, and, upon vacatur, denied the motion to strike, unanimously affirmed, without costs.

The order striking defendant’s answer on default was properly vacated upon a showing of a meritorious defense, namely, lack of notice of the alleged dangerous condition, and a reasonable excuse for the failure to timely submit papers in opposition to the motion, namely, its attorney’s mistaken belief that the date for seeking an adjournment of the motion was not the return date chosen by his adversary but the argument date governed by the Part’s rules (CPLR 2005). The court did not improvidently exercise its discretion in denying the motion to strike defendant’s answer upon a record that is unclear as to whether defendant has been willfully noncompliant with its disclosure obligations (see, Adzhiashvili v Joy-Lud Distribs., 283 AD2d 361). Concur — Nardelli, J. P., Tom, Mazzarelli, Ellerin and Lerner, JJ.

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—Order, Supreme Court, Bronx County (Stanley Green, J.), entered August 28, 2000, which granted defendant-respondent’s motion to vacate an order granting plaintiffs motion to strike defendant’s answer on default, and, upon vacatur, denied the motion to strike, unanimously affirmed, without costs.

The order striking defendant’s answer on default was properly vacated upon a showing of a meritorious defense, namely, lack of notice of the alleged dangerous condition, and a reasonable excuse for the failure to timely submit papers in opposition to the motion, namely, its attorney’s mistaken belief that the date for seeking an adjournment of the motion was not the return date chosen by his adversary but the argument date governed by the Part’s rules (CPLR 2005). The court did not improvidently exercise its discretion in denying the motion to strike defendant’s answer upon a record that is unclear as to whether defendant has been willfully noncompliant with its disclosure obligations (see, Adzhiashvili v Joy-Lud Distribs., 283 AD2d 361). Concur — Nardelli, J. P., Tom, Mazzarelli, Ellerin and Lerner, JJ.

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Bluebook (online)

287 A.D.2d 378, 731 N.Y.S.2d 615, 2001 N.Y. App. Div. LEXIS 9890, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lui-v-arias-nyappdiv-2001.

Opinion

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