Rotondo v. Reeves

Appellate Division of the Supreme Court of New York

Rotondo v. Reeves

192 A.D.2d 1086, 596 N.Y.S.2d 272, 1993 N.Y. App. Div. LEXIS 4099

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

DecidedApril 14, 1993

StatusPublished

Cited by5 cases

This text of 192 A.D.2d 1086 (Rotondo v. Reeves) 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

Rotondo v. Reeves, 192 A.D.2d 1086, 596 N.Y.S.2d 272, 1993 N.Y. App. Div. LEXIS 4099 (N.Y. Ct. App. 1993).

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Opinions

—Order insofar as appealed from reversed on the law without costs and motion granted in part in accordance with the following Memorandum: Defendants moved pursuant to CPLR 3211 (a) (7) to dismiss plaintiffs’ complaint containing two causes of action. Supreme Court granted the motion to the extent of dismissing the second cause of action. The order of dismissal was served on defendants on March 23, 1992, and defendants filed a notice of appeal on March 31, 1992. On July 24, 1992, plaintiffs moved for, inter alia, a default judgment on liability on the ground that defendants had failed to serve an answer within 10 days of service of the order determining the motion to dismiss (see, CPLR 3211 [f]). In opposing the motion, defendants contended that the automatic stay provision of CPLR 5519 (a) (1) excused their failure to serve an answer. We conclude that Supreme Court erroneously denied plaintiffs’ motion for a default judgment. The automatic stay provision of CPLR 5519 (a) (1) “stays only proceedings to enforce the order or judgment appealed from” (Baker v Board of Educ., 152 AD2d 1014; see also, Matter of Gordon v Town of Esopus, 107 AD2d 114, 115, Iv denied 65 NY2d 609). Defendants’ obligation to serve an answer pursuant to CPLR 3211 (f) did not involve a proceeding to enforce the order that determined the motion to dismiss. Defendants never requested that the court grant additional time to serve an answer and never offered a reasonable excuse for their default (see, CPLR 3012 [d]). Plaintiffs’ application for a default judgment on the issue of liability is granted, therefore, but against defendant County only (see, CPLR 3215 [a]). Plaintiffs are not entitled to judgment against defendant C. Dupha Reeves, now deceased, inasmuch as there has been no representative substituted for him (see, CPLR 1015 [a]) and plaintiffs do not appeal from that part of the order denying their motion for an order of substitution.

All concur except Fallon, J., who dissents in part in the following Memorandum.

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—Order insofar as appealed from reversed on the law without costs and motion granted in part in accordance with the following Memorandum: Defendants moved pursuant to CPLR 3211 (a) (7) to dismiss plaintiffs’ complaint containing two causes of action. Supreme Court granted the motion to the extent of dismissing the second cause of action. The order of dismissal was served on defendants on March 23, 1992, and defendants filed a notice of appeal on March 31, 1992. On July 24, 1992, plaintiffs moved for, inter alia, a default judgment on liability on the ground that defendants had failed to serve an answer within 10 days of service of the order determining the motion to dismiss (see, CPLR 3211 [f]). In opposing the motion, defendants contended that the automatic stay provision of CPLR 5519 (a) (1) excused their failure to serve an answer. We conclude that Supreme Court erroneously denied plaintiffs’ motion for a default judgment. The automatic stay provision of CPLR 5519 (a) (1) “stays only proceedings to enforce the order or judgment appealed from” (Baker v Board of Educ., 152 AD2d 1014; see also, Matter of Gordon v Town of Esopus, 107 AD2d 114, 115, Iv denied 65 NY2d 609). Defendants’ obligation to serve an answer pursuant to CPLR 3211 (f) did not involve a proceeding to enforce the order that determined the motion to dismiss. Defendants never requested that the court grant additional time to serve an answer and never offered a reasonable excuse for their default (see, CPLR 3012 [d]). Plaintiffs’ application for a default judgment on the issue of liability is granted, therefore, but against defendant County only (see, CPLR 3215 [a]). Plaintiffs are not entitled to judgment against defendant C. Dupha Reeves, now deceased, inasmuch as there has been no representative substituted for him (see, CPLR 1015 [a]) and plaintiffs do not appeal from that part of the order denying their motion for an order of substitution.

All concur except Fallon, J., who dissents in part in the following Memorandum.

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Bluebook (online)

192 A.D.2d 1086, 596 N.Y.S.2d 272, 1993 N.Y. App. Div. LEXIS 4099, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rotondo-v-reeves-nyappdiv-1993.

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