Moss v. Cooley

90 A.D.2d 657, 456 N.Y.S.2d 256, 1982 N.Y. App. Div. LEXIS 18734

Opinion

Appeal from an order of the Supreme Court at Special Term (Bradley, J.), entered November 16,1981 in Albany County, which granted defendants’ motion to vacate a default judgment rendered in favor of plaintiff. This is another case in which this court is constrained by Barasch v Micucci (49 NY2d 594) and its progeny. The instant action was instituted by the service on defendants of a summons with notice on August 26, 1981. Thereafter, on September 25, 1981, plaintiff, not having received a notice of appearance, secured a default judgment. On September 29,1981, a notice of appearance was served on behalf of defendants and, when the notice of appearance was not accepted, defendants, on October 5, 1981, moved to open their default. This motion was granted and the instant appeal ensued. Defendants submit that the short delay here was caused by bureaucratic problems at the insurance carrier office. Such excuses have been held to be akin to law office failure (Bernard v City School Dist. of Albany, 89 AD2d 676). And, the Court of Appeals has stated that it is an abuse of discretion to vacate a default on the application of a defendant whose only excuse is law office failure (Eaton v Equitable Life Assur. Soc. of U. S., 56 NY2d 900; see, also, Barasch v Micucci, supra). We note that contrary to defendants’ assertion, the notice which accompanied the summons was not defective (see Siegel, New York Practice, §§ 60-62, pp 61-64). Order reversed, on the law, with costs, and motion by defendants denied. Sweeney, J. P., Kane, Main, Mikoll and Yesawich, Jr., JJ., concur.