New York Produce Trade Ass'n v. Mazzilli

Appellate Division of the Supreme Court of New York

New York Produce Trade Ass'n v. Mazzilli

49 A.D.2d 729, 372 N.Y.S.2d 667, 1975 N.Y. App. Div. LEXIS 10669

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

DecidedSeptember 25, 1975

StatusPublished

Cited by1 cases

This text of 49 A.D.2d 729 (New York Produce Trade Ass'n v. Mazzilli) 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

New York Produce Trade Ass'n v. Mazzilli, 49 A.D.2d 729, 372 N.Y.S.2d 667, 1975 N.Y. App. Div. LEXIS 10669 (N.Y. Ct. App. 1975).

Pincite

Opinion

Order entered April 24, 1975, in the Supreme Court, Bronx County, unanimously reversed, on the law, the facts, and in the exercise of discretion, and the motion of defendants-appellants (appellants) to open their default and to serve the proposed answer is granted, without costs to either party. The judgment entered, however, shall remain as security and execution thereon stayed, pending an early determination of the issues. This is an action in contract to recover money for goods sold and delivered and is predicated on the personal guarantees of the appellants. There is no question that appellants were served with process and defaulted in appearing or answering because, according to appellants, they did not understand that the complaint asserted a cause of action against them personally. Such lack of comprehension alone would not warrant the granting of the relief sought; however, appellants assert under oath in their affidavits that they neither signed nor authorized the signing of the guarantees upon which their alleged signatures appear. If that be the fact, they should be afforded an opportunity to so demonstrate. The affirmative defense alleged in the proposed answer, if proven, would be both substantial and meritorious, since the guarantee is to answer for the debt of another, which is required to be in writing and subscribed by the person to be charged (General Obligations Law, § 5-701, subd 2). This accords with our general policy of preferring that controversies be determined on their merits (Warbett v Polokoff, 21 AD2d 771). Since plaintiff obtained the default judgment in good faith, and appellants neglected to timely answer, plaintiff should not be subjected to further unnecessary costs and the judgment should stand as security (CPLR 5015, subd [a]). Concur— Stevens, P. J., Markewich, Capozzoli and Lane, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

Order entered April 24, 1975, in the Supreme Court, Bronx County, unanimously reversed, on the law, the facts, and in the exercise of discretion, and the motion of defendants-appellants (appellants) to open their default and to serve the proposed answer is granted, without costs to either party. The judgment entered, however, shall remain as security and execution thereon stayed, pending an early determination of the issues. This is an action in contract to recover money for goods sold and delivered and is predicated on the personal guarantees of the appellants. There is no question that appellants were served with process and defaulted in appearing or answering because, according to appellants, they did not understand that the complaint asserted a cause of action against them personally. Such lack of comprehension alone would not warrant the granting of the relief sought; however, appellants assert under oath in their affidavits that they neither signed nor authorized the signing of the guarantees upon which their alleged signatures appear. If that be the fact, they should be afforded an opportunity to so demonstrate. The affirmative defense alleged in the proposed answer, if proven, would be both substantial and meritorious, since the guarantee is to answer for the debt of another, which is required to be in writing and subscribed by the person to be charged (General Obligations Law, § 5-701, subd 2). This accords with our general policy of preferring that controversies be determined on their merits (Warbett v Polokoff, 21 AD2d 771). Since plaintiff obtained the default judgment in good faith, and appellants neglected to timely answer, plaintiff should not be subjected to further unnecessary costs and the judgment should stand as security (CPLR 5015, subd [a]). Concur— Stevens, P. J., Markewich, Capozzoli and Lane, JJ.

Cite This Page — Counsel Stack

Bluebook (online)

49 A.D.2d 729, 372 N.Y.S.2d 667, 1975 N.Y. App. Div. LEXIS 10669, Counsel Stack Legal Research, https://law.counselstack.com/opinion/new-york-produce-trade-assn-v-mazzilli-nyappdiv-1975.

Opinion

Related

Cite This Page — Counsel Stack