Ortiz v. Delmar Recycling Corp.

Appellate Division of the Supreme Court of New York

Ortiz v. Delmar Recycling Corp.

244 A.D.2d 392, 665 N.Y.S.2d 551, 1997 N.Y. App. Div. LEXIS 11271

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

DecidedNovember 10, 1997

StatusPublished

Cited by3 cases

This text of 244 A.D.2d 392 (Ortiz v. Delmar Recycling 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

Ortiz v. Delmar Recycling Corp., 244 A.D.2d 392, 665 N.Y.S.2d 551, 1997 N.Y. App. Div. LEXIS 11271 (N.Y. Ct. App. 1997).

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Opinion

—In an action to recover damages for personal injuries, the plaintiff appeals from an or[393]*393der of the Supreme Court, Queens County (Satterfield, J.), dated September 30, 1996, which denied his motion for leave to enter a judgment upon the defendants’ default in appearing and granted the defendants’ cross motion for leave to interpose a late answer.

Ordered that the order is reversed, as a matter of discretion, with costs, the motion is granted, the cross motion is denied, and the matter is remitted to the Supreme Court, Queens County, for an inquest on damages.

The Supreme Court improvidently exercised its discretion in denying the plaintiffs motion and granting the defendants’ cross motion. It was incumbent upon the defendants to present a reasonable cause for the more than four-month delay in serving their answer (see, CPLR 3012 [d]; 5015 [a]; Pumarejo-Garcia v McDonough, 242 AD2d 374). The only excuse offered was that “the file which was opened for this claim was misplaced and could not be located”. That excuse is insufficient under the circumstances of this case (see, Martyn v Jones, 166 AD2d 508; Peters v Pickard, 143 AD2d 81). Rosenblatt, J. P., O’Brien, Thompson, Friedmann and Goldstein, JJ., concur.

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—In an action to recover damages for personal injuries, the plaintiff appeals from an or[393]*393der of the Supreme Court, Queens County (Satterfield, J.), dated September 30, 1996, which denied his motion for leave to enter a judgment upon the defendants’ default in appearing and granted the defendants’ cross motion for leave to interpose a late answer.

Ordered that the order is reversed, as a matter of discretion, with costs, the motion is granted, the cross motion is denied, and the matter is remitted to the Supreme Court, Queens County, for an inquest on damages.

The Supreme Court improvidently exercised its discretion in denying the plaintiffs motion and granting the defendants’ cross motion. It was incumbent upon the defendants to present a reasonable cause for the more than four-month delay in serving their answer (see, CPLR 3012 [d]; 5015 [a]; Pumarejo-Garcia v McDonough, 242 AD2d 374). The only excuse offered was that “the file which was opened for this claim was misplaced and could not be located”. That excuse is insufficient under the circumstances of this case (see, Martyn v Jones, 166 AD2d 508; Peters v Pickard, 143 AD2d 81). Rosenblatt, J. P., O’Brien, Thompson, Friedmann and Goldstein, JJ., concur.

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Bluebook (online)

244 A.D.2d 392, 665 N.Y.S.2d 551, 1997 N.Y. App. Div. LEXIS 11271, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ortiz-v-delmar-recycling-corp-nyappdiv-1997.

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