Pazienza v. Floral Pet, Inc.

98 A.D.2d 743, 470 N.Y.S.2d 330, 1983 N.Y. App. Div. LEXIS 21057

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 12, 1983
• Status: Published

Opinion

— In a negligence action to recover damages for personal injuries, plaintiff appeals from an order of the Supreme Court, Nassau County (Berman, J.), dated April 27,1983, which granted defendant’s motion to vacate its default, extend its time to answer the complaint, and vacate plaintiff’s note of issue and request for inquest. Defendant cross-appeals from the same order insofar as it did not base the vacatur of the note of issue and request for inquest on the ground that plaintiff failed to make a prima facie showing of jurisdiction. Order affirmed insofar as appealed from by plaintiff. Cross appeal dismissed. Defendant is awarded one bill of costs. Defendant’s appendix contained only its notice of cross appeal. Under the provisions of 22 NYCRR 670.8, this was not sufficient in order to perfect the cross appeal and the cross appeal is dismissed (Cooper v Bosse, 85 AD2d 616). Defendant’s excuse for its default was based on law office failure. However, the excuse was reasonable, the time of the delay was relatively short, there was no prejudice to plaintiff, and defendant established a meritorious defense (see CPLR 2005, 3012, subd Id]). Titone, J. P., Gibbons, O’Connor and Rubin, JJ., concur.