Tobin v. Perlmutter

Appellate Division of the Supreme Court of New York

Tobin v. Perlmutter

288 A.D.2d 210, 732 N.Y.S.2d 576, 2001 N.Y. App. Div. LEXIS 10497

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

DecidedNovember 5, 2001

StatusPublished

Cited by4 cases

This text of 288 A.D.2d 210 (Tobin v. Perlmutter) 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.

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Tobin v. Perlmutter, 288 A.D.2d 210, 732 N.Y.S.2d 576, 2001 N.Y. App. Div. LEXIS 10497 (N.Y. Ct. App. 2001).

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Opinion

—In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Richmond County (Lebowitz, J.), dated December 8, 2000, which denied his motion to vacate a judgment of the same court entered June 14, 2000, upon his failure to answer the complaint.

Ordered that the order is affirmed, with costs.

The Supreme Court properly exercised its discretion in denying the defendant’s motion to vacate the default judgment since neither the defendant’s unsubstantiated assertion of illness (see, Fuller v Tae Kwon, 259 AD2d 662; Smith v Fritz, 148 AD2d 438), nor his claim of lack of notice of a dangerous condition was presented to the court in proper evidentiary form (see, Westchester County Med. Ctr. v Allstate Ins. Co., 283 AD2d 488; Essner v Keavy, 104 AD2d 632; James v Hoffman, 158 AD2d 398). “The decision as to the setting aside of a default in answering is generally left to the sound discretion of the Supreme Court, the exercise of which will generally not be disturbed if there is support in the record therefor” (Manigat v Louis, 262 AD2d 289 [internal quotation marks omitted]).

The plaintiffs remaining contentions are either not properly before this Court (see, First Intl. Bank v Blankstein & Son, 59 NY2d 436; Block v Magee, 146 AD2d 730) or without merit. Santucci, J. P., Goldstein, Townes and Cozier, JJ., concur.

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—In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Richmond County (Lebowitz, J.), dated December 8, 2000, which denied his motion to vacate a judgment of the same court entered June 14, 2000, upon his failure to answer the complaint.

Ordered that the order is affirmed, with costs.

The Supreme Court properly exercised its discretion in denying the defendant’s motion to vacate the default judgment since neither the defendant’s unsubstantiated assertion of illness (see, Fuller v Tae Kwon, 259 AD2d 662; Smith v Fritz, 148 AD2d 438), nor his claim of lack of notice of a dangerous condition was presented to the court in proper evidentiary form (see, Westchester County Med. Ctr. v Allstate Ins. Co., 283 AD2d 488; Essner v Keavy, 104 AD2d 632; James v Hoffman, 158 AD2d 398). “The decision as to the setting aside of a default in answering is generally left to the sound discretion of the Supreme Court, the exercise of which will generally not be disturbed if there is support in the record therefor” (Manigat v Louis, 262 AD2d 289 [internal quotation marks omitted]).

The plaintiffs remaining contentions are either not properly before this Court (see, First Intl. Bank v Blankstein & Son, 59 NY2d 436; Block v Magee, 146 AD2d 730) or without merit. Santucci, J. P., Goldstein, Townes and Cozier, JJ., concur.

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Bluebook (online)

288 A.D.2d 210, 732 N.Y.S.2d 576, 2001 N.Y. App. Div. LEXIS 10497, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tobin-v-perlmutter-nyappdiv-2001.

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