Straub v. Becker

Appellate Division of the Supreme Court of New York

Straub v. Becker

210 A.D.2d 125, 620 N.Y.S.2d 64, 1994 N.Y. App. Div. LEXIS 12703

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

DecidedDecember 15, 1994

StatusPublished

This text of 210 A.D.2d 125 (Straub v. Becker) 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

Straub v. Becker, 210 A.D.2d 125, 620 N.Y.S.2d 64, 1994 N.Y. App. Div. LEXIS 12703 (N.Y. Ct. App. 1994).

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Opinion

—Order, Supreme Court, Bronx County (Alan Saks, J.), entered October 1, 1993, which denied defendant-appellant’s motion to vacate its default in answering, unanimously affirmed, without costs.

Defendant-appellant’s insurer’s asserted loss of its file in this matter in the course of a corporate reorganization and relocation, while plausible perhaps to excuse defendant’s failure to answer by December 10, 1992 in keeping with the first extension allowed by plaintiff (see, e.g., Massachusetts Bay Ins. Co. v Guardian Escrow Corp., 171 AD2d 615), does not explain defendant’s continuing failure to answer in disregard of plaintiff’s attorney’s written advice to defendant’s insurer of January 8, 1992 of plaintiff’s intention to enter a default if an answer was not received within two weeks, and of January 14, 1992 enclosing a copy of the summons and complaint and again giving notice that a default would be entered if an answer was not forthcoming (compare, e.g., Price v Polisner, 172 AD2d 422). Absent a reasonable excuse, it was not an abuse of discretion for the IAS Court to refuse to open the default. Concur—Sullivan, J. R, Rosenberger, Wallach and Asch, JJ.

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—Order, Supreme Court, Bronx County (Alan Saks, J.), entered October 1, 1993, which denied defendant-appellant’s motion to vacate its default in answering, unanimously affirmed, without costs.

Defendant-appellant’s insurer’s asserted loss of its file in this matter in the course of a corporate reorganization and relocation, while plausible perhaps to excuse defendant’s failure to answer by December 10, 1992 in keeping with the first extension allowed by plaintiff (see, e.g., Massachusetts Bay Ins. Co. v Guardian Escrow Corp., 171 AD2d 615), does not explain defendant’s continuing failure to answer in disregard of plaintiff’s attorney’s written advice to defendant’s insurer of January 8, 1992 of plaintiff’s intention to enter a default if an answer was not received within two weeks, and of January 14, 1992 enclosing a copy of the summons and complaint and again giving notice that a default would be entered if an answer was not forthcoming (compare, e.g., Price v Polisner, 172 AD2d 422). Absent a reasonable excuse, it was not an abuse of discretion for the IAS Court to refuse to open the default. Concur—Sullivan, J. R, Rosenberger, Wallach and Asch, JJ.

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Bluebook (online)

210 A.D.2d 125, 620 N.Y.S.2d 64, 1994 N.Y. App. Div. LEXIS 12703, Counsel Stack Legal Research, https://law.counselstack.com/opinion/straub-v-becker-nyappdiv-1994.

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