National Union Fire Insurance Co. of Pittsburgh v. Sullivan

269 A.D.2d 149, 701 N.Y.S.2d 902, 2000 N.Y. App. Div. LEXIS 1021

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 3, 2000
• Status: Published

Opinion

—Order, Supreme Court, New York County (Charles Ramos, J.), entered November 5, 1998, which, in an action by a surety on an appeal bond, denied plaintiffs motion for a default judgment, and granted defendant’s cross motion for an extension of time to serve an answer, unanimously affirmed, without costs.

Plaintiffs papers in support of its motion for a default judgment failed to provide any confirmation of its allegation that defendant agreed to reimburse plaintiff for payments which plaintiff made under an appeal bond issued on behalf of a nonparty (CPLR 3215 [f|; see, Joosten v Gale, 129 AD2d 531, 535). Indeed, the unsigned document that plaintiff claims constitutes such agreement, which is in the form of a letter from defendant to plaintiff and which is marked “DRAFT”, tends to show that there may have been no finalized agreement. Under the present circumstances, the granting of defendant’s cross motion to vacate his default in answering was a proper exercise of discretion. Concur — Rosenberger, J. P., Nardelli, Ellerin, Saxe and Buckley, JJ.