U.S. Bus Corp. v. J.S. Ben-Ezra Industrial Sales, Inc.

Appellate Division of the Supreme Court of New York

U.S. Bus Corp. v. J.S. Ben-Ezra Industrial Sales, Inc.

17 A.D.3d 451, 792 N.Y.S.2d 620, 2005 N.Y. App. Div. LEXIS 3816

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

DecidedApril 11, 2005

StatusPublished

This text of 17 A.D.3d 451 (U.S. Bus Corp. v. J.S. Ben-Ezra Industrial Sales, 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

U.S. Bus Corp. v. J.S. Ben-Ezra Industrial Sales, Inc., 17 A.D.3d 451, 792 N.Y.S.2d 620, 2005 N.Y. App. Div. LEXIS 3816 (N.Y. Ct. App. 2005).

Pincite

Opinion

[452]*452In an action, inter alia, to recover damages for breach of contract, the plaintiffs appeal from an order of the Supreme Court, Rockland County (Nelson, J.), dated December 5, 2003, which denied their motion for leave to enter judgment in favor of the plaintiff US Bus Corp. and against the defendants in the sum of $458,510 upon the defendants’ failure to appear and answer, granted the defendants’ cross motion, in effect, to vacate their default and to compel the plaintiffs to accept their verified answer, and deemed the answer served.

Ordered that the order is affirmed, with costs.

A defendant seeking to vacate a default in appearing or answering must demonstrate a justifiable excuse for the default and a meritorious defense (see CPLR 5015 [a] [1]; Westchester Med. Ctr. v ELRAC, Inc., 301 AD2d 518 [2003]; Cilindrello v Rayabin, 297 AD2d 699 [2002]). The determination of what constitutes a reasonable excuse lies within the sound discretion of the trial court (see Matter of Gambardella v Ortov Light., 278 AD2d 494 [2000]; Parker v City of New York, 272 AD2d 310 [2000]). We agree with the Supreme Court that the defendants satisfied their burden. Their unintentional default was minimal, and they demonstrated a meritorious defense that their heater was not responsible for the subject fire. H. Miller, J.P., S. Miller, Goldstein, Mastro and Lifson, JJ., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

[452]*452In an action, inter alia, to recover damages for breach of contract, the plaintiffs appeal from an order of the Supreme Court, Rockland County (Nelson, J.), dated December 5, 2003, which denied their motion for leave to enter judgment in favor of the plaintiff US Bus Corp. and against the defendants in the sum of $458,510 upon the defendants’ failure to appear and answer, granted the defendants’ cross motion, in effect, to vacate their default and to compel the plaintiffs to accept their verified answer, and deemed the answer served.

Ordered that the order is affirmed, with costs.

A defendant seeking to vacate a default in appearing or answering must demonstrate a justifiable excuse for the default and a meritorious defense (see CPLR 5015 [a] [1]; Westchester Med. Ctr. v ELRAC, Inc., 301 AD2d 518 [2003]; Cilindrello v Rayabin, 297 AD2d 699 [2002]). The determination of what constitutes a reasonable excuse lies within the sound discretion of the trial court (see Matter of Gambardella v Ortov Light., 278 AD2d 494 [2000]; Parker v City of New York, 272 AD2d 310 [2000]). We agree with the Supreme Court that the defendants satisfied their burden. Their unintentional default was minimal, and they demonstrated a meritorious defense that their heater was not responsible for the subject fire. H. Miller, J.P., S. Miller, Goldstein, Mastro and Lifson, JJ., concur.

Cite This Page — Counsel Stack

Bluebook (online)

17 A.D.3d 451, 792 N.Y.S.2d 620, 2005 N.Y. App. Div. LEXIS 3816, Counsel Stack Legal Research, https://law.counselstack.com/opinion/us-bus-corp-v-js-ben-ezra-industrial-sales-inc-nyappdiv-2005.

Opinion

Related

Cite This Page — Counsel Stack