Morsly, Inc. v. 527 West 29th Street Corp.

Appellate Division of the Supreme Court of New York

Morsly, Inc. v. 527 West 29th Street Corp.

184 A.D.2d 401, 585 N.Y.S.2d 45, 1992 N.Y. App. Div. LEXIS 8516

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

DecidedJune 23, 1992

StatusPublished

This text of 184 A.D.2d 401 (Morsly, Inc. v. 527 West 29th Street Corp.) 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

Morsly, Inc. v. 527 West 29th Street Corp., 184 A.D.2d 401, 585 N.Y.S.2d 45, 1992 N.Y. App. Div. LEXIS 8516 (N.Y. Ct. App. 1992).

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Opinion

Order, Supreme Court, New York County (David B. Saxe, J.), entered January 30, 1992, which, inter alia, granted defendant’s motion to vacate a default upon defendant’s attorney’s payment of $1500 to the plaintiff, unanimously affirmed, with costs.

[402]*402It was necessary, on this motion to vacate a default on a motion seeking sanctions for failure to provide discovery, that defendant establish both an excusable default and a meritorious defense (Fidelity & Deposit Co. v Andersen & Co., 60 NY2d 693). In this regard, although defendant’s principal could not be located to submit an affidavit on the motion, a report of a fire engineer was submitted, which, together with certain portions of the transcript of the principal’s EBT, sufficiently established a meritorious defense. In view of the fact that defendant established that it had complied, to the extent it was able, with the demand for discovery and inspection, and in view of the fact that defendant had submitted opposition papers to the motion, and that its default on the motion was a mere oversight, it cannot be said that defendant’s default was either willful or contumacious so as to warrant the striking of its answer. Concur — Murphy, P. J., Milonas, Rosenberger, Ross and Smith, JJ.

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Order, Supreme Court, New York County (David B. Saxe, J.), entered January 30, 1992, which, inter alia, granted defendant’s motion to vacate a default upon defendant’s attorney’s payment of $1500 to the plaintiff, unanimously affirmed, with costs.

[402]*402It was necessary, on this motion to vacate a default on a motion seeking sanctions for failure to provide discovery, that defendant establish both an excusable default and a meritorious defense (Fidelity & Deposit Co. v Andersen & Co., 60 NY2d 693). In this regard, although defendant’s principal could not be located to submit an affidavit on the motion, a report of a fire engineer was submitted, which, together with certain portions of the transcript of the principal’s EBT, sufficiently established a meritorious defense. In view of the fact that defendant established that it had complied, to the extent it was able, with the demand for discovery and inspection, and in view of the fact that defendant had submitted opposition papers to the motion, and that its default on the motion was a mere oversight, it cannot be said that defendant’s default was either willful or contumacious so as to warrant the striking of its answer. Concur — Murphy, P. J., Milonas, Rosenberger, Ross and Smith, JJ.

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Bluebook (online)

184 A.D.2d 401, 585 N.Y.S.2d 45, 1992 N.Y. App. Div. LEXIS 8516, Counsel Stack Legal Research, https://law.counselstack.com/opinion/morsly-inc-v-527-west-29th-street-corp-nyappdiv-1992.

Opinion

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