O'Connor v. S & R Medallion Corp.

Appellate Division of the Supreme Court of New York

O'Connor v. S & R Medallion Corp.

309 A.D.2d 717, 766 N.Y.S.2d 552

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

DecidedOctober 30, 2003

StatusPublished

This text of 309 A.D.2d 717 (O'Connor v. S & R Medallion Corp.) 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

O'Connor v. S & R Medallion Corp., 309 A.D.2d 717, 766 N.Y.S.2d 552 (N.Y. Ct. App. 2003).

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Opinion

Order, Supreme Court, New York County (Milton Tingling, J.), entered December 7, 2001, which, to the extent appealed from, denied plaintiffs’ cross motion to preclude defendant S.J. Jean-Francois from offering expert testimony on damages, and order, same court and Justice, entered April 2, 2002, which, to the extent appealed from, denied plaintiffs’ motion for a default judgment against defendant Solomon Bekele, unanimously affirmed, without costs.

The striking of defendant S.J. Jean-Francois’s answer did not preclude his offer of expert testimony on mitigation of damages (see CPLR 1411, 3215; Reynolds Sec. v Underwriters Bank & Trust Co., 44 NY2d 568 [1978]; see also Conteh v Hand, 234 AD2d 96 [1996]).

Plaintiffs’ motion for a default judgment against defendant Solomon Bekele was properly denied. Bekele sufficiently demonstrated, in addition to a meritorious defense, a reasonable excuse for his delay in appearing in this, the third action commenced by plaintiffs on the same facts, particularly where Bekele had already answered the complaint in the first such action (see Fidelity & Deposit Co. v Andersen & Co., 60 NY2d 693 [1983]). Concur — Andrias, J.P., Saxe, Williams, Marlow and Gonzalez, JJ.

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Order, Supreme Court, New York County (Milton Tingling, J.), entered December 7, 2001, which, to the extent appealed from, denied plaintiffs’ cross motion to preclude defendant S.J. Jean-Francois from offering expert testimony on damages, and order, same court and Justice, entered April 2, 2002, which, to the extent appealed from, denied plaintiffs’ motion for a default judgment against defendant Solomon Bekele, unanimously affirmed, without costs.

The striking of defendant S.J. Jean-Francois’s answer did not preclude his offer of expert testimony on mitigation of damages (see CPLR 1411, 3215; Reynolds Sec. v Underwriters Bank & Trust Co., 44 NY2d 568 [1978]; see also Conteh v Hand, 234 AD2d 96 [1996]).

Plaintiffs’ motion for a default judgment against defendant Solomon Bekele was properly denied. Bekele sufficiently demonstrated, in addition to a meritorious defense, a reasonable excuse for his delay in appearing in this, the third action commenced by plaintiffs on the same facts, particularly where Bekele had already answered the complaint in the first such action (see Fidelity & Deposit Co. v Andersen & Co., 60 NY2d 693 [1983]). Concur — Andrias, J.P., Saxe, Williams, Marlow and Gonzalez, JJ.

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Bluebook (online)

309 A.D.2d 717, 766 N.Y.S.2d 552, Counsel Stack Legal Research, https://law.counselstack.com/opinion/oconnor-v-s-r-medallion-corp-nyappdiv-2003.

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