Sela v. Hammerson Fifth Avenue, Inc.

Appellate Division of the Supreme Court of New York

Sela v. Hammerson Fifth Avenue, Inc.

277 A.D.2d 7, 716 N.Y.S.2d 564, 2000 N.Y. App. Div. LEXIS 11063

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

DecidedNovember 2, 2000

StatusPublished

This text of 277 A.D.2d 7 (Sela v. Hammerson Fifth Avenue, Inc.) 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

Sela v. Hammerson Fifth Avenue, Inc., 277 A.D.2d 7, 716 N.Y.S.2d 564, 2000 N.Y. App. Div. LEXIS 11063 (N.Y. Ct. App. 2000).

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Opinion

—Order, Supreme Court, New York County (Edward Lehner, J.), entered April 5, 2000, which denied defendant’s motion to vacate a prior order, entered September 13, 1999, granting plaintiffs motion to strike defendant’s answer on default, unanimously reversed, on the law, the facts, and in the exercise of discretion, without costs, the motion to vacate granted, and the answer reinstated.

The motion court improvidently exercised its discretion in denying defendant’s motion to vacate the default order. Defendant established, as required by CPLR 5015, a reasonable excuse for the default, i.e., inadvertent law office failure, and a meritorious defense. As to the latter issue, the affirmation submitted by defendant’s attorney, whether or not based on his personal knowledge of the underlying facts, was a proper vehicle for the submission of evidence in admissible form (see, Grossberg Tudanger Adv. v Weinreb, 177 AD2d 377, 378; Zuckerman v City of New York, 49 NY2d 557, 563), consisting of agreement between defendants and a waste disposal contractor purporting to show that maintenance of the waste compactor unit that was the alleged cause of plaintiffs slip and fall injury was the responsibility of the contractor. Concur — Rosenberger, J. P., Williams, Wallach, Saxe and Buckley, JJ.

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—Order, Supreme Court, New York County (Edward Lehner, J.), entered April 5, 2000, which denied defendant’s motion to vacate a prior order, entered September 13, 1999, granting plaintiffs motion to strike defendant’s answer on default, unanimously reversed, on the law, the facts, and in the exercise of discretion, without costs, the motion to vacate granted, and the answer reinstated.

The motion court improvidently exercised its discretion in denying defendant’s motion to vacate the default order. Defendant established, as required by CPLR 5015, a reasonable excuse for the default, i.e., inadvertent law office failure, and a meritorious defense. As to the latter issue, the affirmation submitted by defendant’s attorney, whether or not based on his personal knowledge of the underlying facts, was a proper vehicle for the submission of evidence in admissible form (see, Grossberg Tudanger Adv. v Weinreb, 177 AD2d 377, 378; Zuckerman v City of New York, 49 NY2d 557, 563), consisting of agreement between defendants and a waste disposal contractor purporting to show that maintenance of the waste compactor unit that was the alleged cause of plaintiffs slip and fall injury was the responsibility of the contractor. Concur — Rosenberger, J. P., Williams, Wallach, Saxe and Buckley, JJ.

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Bluebook (online)

277 A.D.2d 7, 716 N.Y.S.2d 564, 2000 N.Y. App. Div. LEXIS 11063, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sela-v-hammerson-fifth-avenue-inc-nyappdiv-2000.

Opinion

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