Midnight Ears, Inc. v. Clear-Vu Packaging, Inc.

81 A.D.2d 907, 439 N.Y.S.2d 397, 1981 N.Y. App. Div. LEXIS 11630

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 26, 1981
• Status: Published

Opinion

— In an action to recover damages for loss of bailed property, defendant Clear-Vu Packaging, Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court, Westchester County, dated May 12, 1980, as, upon reargument, adhered to the court’s original determination denying said defendant’s motion to vacate a default judgment. Order modified, on the law and as a matter of discretion, by adding thereto, after the provision adhering to the original determination, the following: “except that the default judgment is opened to the extent of directing a reassessment of damages.” As so modified, order affirmed insofar as appealed from, without costs or disbursements. The judgment shall remain on record in the interim. In our view, the record offers no basis for reopening of the entire default and vacatur of the judgment. The fact that appellant’s insurance carriers engaged in a quarrel among themselves and disputed their obligation to defend provides no excuse to the appellant for delaying 11 months after the time to answer had expired before moving to vacate the default. Indeed, the appellant seems to have defaulted as well in a subsequent New Jersey action to enforce the New York judgment. Nevertheless, the vast discrepancy between plaintiff’s original claim for stock loss and the amount of loss adjudged at the inquest on the basis of rather scanty evidence warrants the opening of the default judgment to the extent of directing a new inquest at which appellant may defend on the issue of damages (see Monette v Bonsall, 29 AD2d 839). Damiani, J. P., Lazer, Mangano and Gibbons, JJ., concur.