Luna Baking Co. v. Myerwold

69 A.D.2d 832, 415 N.Y.S.2d 88, 1979 N.Y. App. Div. LEXIS 11503

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 9, 1979
• Status: Published

Opinion

In an action, inter alia, to recover damages for breach of contract, in which a default judgment was entered in favor of plaintiff upon defendant’s failure to appear for trial, the plaintiff appeals from an order of the Supreme Court, Orange County, dated November 14, 1978, which conditionally granted the defendant’s motion to vacate the default judgment. Order affirmed, with $50 costs and disbursements. The motion in the present case was made more than one year after entry of the default judgment. However, the one-year period set out in CPLR 5015 (subd [a]) is not a Statute of Limitations and a court may exercise its inherent discretionary power to vacate a default judgment upon a motion made after one year (Michaud v Loblaws, Inc., 36 AD2d 1013). On the basis of the facts herein, Special Term did not abuse its discretion. Mollen, P. J., Suozzi, O’Connor and Mangano, JJ., concur.