Napolitano v. Heller Auto Leasing, Inc.

Appellate Division of the Supreme Court of New York

Napolitano v. Heller Auto Leasing, Inc.

150 A.D.2d 435, 540 N.Y.S.2d 739, 1989 N.Y. App. Div. LEXIS 6423

Appellate Division of the Supreme Court of the State of New York·Decided May 8, 1989·Published

Opinion

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Cohen, J.), dated September 27, 1988, which denied his motion for leave to enter a default judgment against the defendants G&R Trucking Co., Inc. and Donovan Young and granted the cross motion of those defendants to compel the plaintiff to accept their late answer.

Ordered that the order is reversed, on the law and as a matter of discretion, with costs, the motion is granted, and the cross motion is denied.

The respondents’ cross motion to compel the plaintiff to accept service of their late answer may be considered a motion, pursuant to CPLR 5015 (a) (1), to vacate their default in appearing (see, Shure v Village of Westhampton Beach, 121 AD2d 887; Mufalli v Ford Motor Co., 105 AD2d 642). That default was approximately one year in duration. Since they did not include an affidavit of merit with their cross motion, their cross motion is denied, and the plaintiffs motion is granted. Mangano, J. P., Thompson, Bracken and Eiber, JJ., concur.

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In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Cohen, J.), dated September 27, 1988, which denied his motion for leave to enter a default judgment against the defendants G&R Trucking Co., Inc. and Donovan Young and granted the cross motion of those defendants to compel the plaintiff to accept their late answer.

Ordered that the order is reversed, on the law and as a matter of discretion, with costs, the motion is granted, and the cross motion is denied.

The respondents’ cross motion to compel the plaintiff to accept service of their late answer may be considered a motion, pursuant to CPLR 5015 (a) (1), to vacate their default in appearing (see, Shure v Village of Westhampton Beach, 121 AD2d 887; Mufalli v Ford Motor Co., 105 AD2d 642). That default was approximately one year in duration. Since they did not include an affidavit of merit with their cross motion, their cross motion is denied, and the plaintiffs motion is granted. Mangano, J. P., Thompson, Bracken and Eiber, JJ., concur.

Napolitano v. Heller Auto Leasing, Inc., 150 A.D.2d 435, 540 N.Y.S.2d 739, 1989 N.Y. App. Div. LEXIS 6423 (N.Y. Ct. App. 1989).

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150 A.D.2d 435 (Napolitano v. Heller Auto Leasing, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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