Pricher v. City of New York

Appellate Division of the Supreme Court of New York

Pricher v. City of New York

251 A.D.2d 242, 674 N.Y.S.2d 674, 1998 N.Y. App. Div. LEXIS 7703

Appellate Division of the Supreme Court of the State of New York·Decided June 25, 1998·Published·Cited by 3 cases

Opinion

—Order, Supreme Court, Bronx County (Douglas McKeon, J.), entered March 13, 1997, which granted defendant’s motion to vacate a prior order holding it in default of appearance and directing an assessment of damages, unanimously affirmed, without costs.

Given that the order to show cause to vacate the default was obtained within a year of defendant having been served with a copy of the order holding it in default, the IAS Court properly exercised its “inherent power to consider applications seeking relief from a default judgment made more than one year after entry of the default judgment” (Hunter v Enquirer / Star, Inc., 210 AD2d 32, 33). Further, it is clear that the default was not willful and that defendant always intended to defend the action and has a meritorious defense. Under the circumstances, including defendant’s rebuffed service of a one-month late answer two days before the granting of the ex parte motion to hold it in default, and in view of the strong preference for resolving cases on the merits (supra), the default was properly vacated without imposition of any conditions. Concur — Milonas, J. P., Ellerin, Nardelli, Rubin and Andrias, JJ.

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—Order, Supreme Court, Bronx County (Douglas McKeon, J.), entered March 13, 1997, which granted defendant’s motion to vacate a prior order holding it in default of appearance and directing an assessment of damages, unanimously affirmed, without costs.

Given that the order to show cause to vacate the default was obtained within a year of defendant having been served with a copy of the order holding it in default, the IAS Court properly exercised its “inherent power to consider applications seeking relief from a default judgment made more than one year after entry of the default judgment” (Hunter v Enquirer / Star, Inc., 210 AD2d 32, 33). Further, it is clear that the default was not willful and that defendant always intended to defend the action and has a meritorious defense. Under the circumstances, including defendant’s rebuffed service of a one-month late answer two days before the granting of the ex parte motion to hold it in default, and in view of the strong preference for resolving cases on the merits (supra), the default was properly vacated without imposition of any conditions. Concur — Milonas, J. P., Ellerin, Nardelli, Rubin and Andrias, JJ.

Pricher v. City of New York, 251 A.D.2d 242, 674 N.Y.S.2d 674, 1998 N.Y. App. Div. LEXIS 7703 (N.Y. Ct. App. 1998).

Pincite

251 A.D.2d 242 (Pricher v. City of New York) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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