Rugieri v. Bannister

New York Court of Appeals

Rugieri v. Bannister

853 N.E.2d 231, 7 N.Y.3d 742, 819 N.Y.S.2d 861, 2006 NY Slip Op 5159, 2006 N.Y. LEXIS 1760

CourtNew York Court of Appeals

DecidedJune 29, 2006

StatusPublished

Cited by43 cases

This text of 853 N.E.2d 231 (Rugieri v. Bannister) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Rugieri v. Bannister, 853 N.E.2d 231, 7 N.Y.3d 742, 819 N.Y.S.2d 861, 2006 NY Slip Op 5159, 2006 N.Y. LEXIS 1760 (N.Y. 2006).

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Opinion

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, with costs to defendant Cheek against the plaintiffs, by granting defendant Cheek’s motion for summary judgment dismissing the complaint as against her and, as modified, affirmed, with costs to the plaintiffs against the Bannister defendants. The certified question should be answered in the negative.

Because plaintiffs did not establish a triable issue of fact regarding defendant Leann Cheek’s alleged negligence, the *744 Appellate Division erred in reversing Supreme Court’s grant of Cheek’s motion for summary judgment. The Appellate Division, however, did not abuse its discretion in vacating the judgments and reinstating the complaint as against the Bannister defendants since plaintiffs proffered a reasonable excuse for their default and facts indicating a meritorious cause of action (see CPLR 5015 [a] [1]; Alliance Prop. Mgt. & Dev. v Andrews Ave. Equities, 70 NY2d 831, 832-833 [1987]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]). On remittal to Supreme Court, the parties are left to litigate the motion pending at the time the default judgment was entered.

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith concur in memorandum.

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order modified, etc.

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OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, with costs to defendant Cheek against the plaintiffs, by granting defendant Cheek’s motion for summary judgment dismissing the complaint as against her and, as modified, affirmed, with costs to the plaintiffs against the Bannister defendants. The certified question should be answered in the negative.

Because plaintiffs did not establish a triable issue of fact regarding defendant Leann Cheek’s alleged negligence, the *744 Appellate Division erred in reversing Supreme Court’s grant of Cheek’s motion for summary judgment. The Appellate Division, however, did not abuse its discretion in vacating the judgments and reinstating the complaint as against the Bannister defendants since plaintiffs proffered a reasonable excuse for their default and facts indicating a meritorious cause of action (see CPLR 5015 [a] [1]; Alliance Prop. Mgt. & Dev. v Andrews Ave. Equities, 70 NY2d 831, 832-833 [1987]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]). On remittal to Supreme Court, the parties are left to litigate the motion pending at the time the default judgment was entered.

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith concur in memorandum.

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order modified, etc.

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Bluebook (online)

853 N.E.2d 231, 7 N.Y.3d 742, 819 N.Y.S.2d 861, 2006 NY Slip Op 5159, 2006 N.Y. LEXIS 1760, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rugieri-v-bannister-ny-2006.

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