Nemetsky v. Banque Developpment De La Republique Du Niger

59 A.D.2d 527, 397 N.Y.S.2d 353, 1977 N.Y. App. Div. LEXIS 13309

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 1, 1977
• Status: Published

Opinion

In an action, inter alia, on a draft plaintiff appeals from so much of an order of the Supreme Court, Kings County, dated March 17, 1977, as granted respondent’s motion to vacate a default judgment. Order affirmed insofar as appealed from, with $50 costs and disbursements, and the time within which respondent may serve its answer or otherwise move with respect to the complaint is extended until 20 days after service upon it of a copy of the order to be entered hereon, together with notice of entry thereof. We reaffirm our holding in McDermott v Hoenig (32 AD2d 838). CPLR 305 (subd [b]) provides that, in the absence of a complaint, the summons may contain "a notice stating the object of the action”. No default judgment may be entered absent proof of service of a summons and complaint or a summons and notice (CPLR 3215, subds [a], [e]). Additionally, we find the delay of one day should not bar respondent from interposing the several affirmative defenses it wishes to assert, particularly as its place of business is in the Republic of Niger. The attendant problems of communication and the inadvertent confusion resulting from the pendency of several other actions involving the same parties also constitute excusable delay. However, we do not agree, as asserted by the respondent’s attorney at the oral argument, that the order under review constitutes a dismissal of the action and, accordingly, we have granted leave to the respondent to serve an answer or move with respect to the complaint. Hopkins, J. P., Shapiro, Suozzi and Mollen, JJ., concur.