White Lumber & Millwork Corp. v. Andreola

Appellate Division of the Supreme Court of New York

White Lumber & Millwork Corp. v. Andreola

3 A.D.2d 945, 164 N.Y.S.2d 119, 1957 N.Y. App. Div. LEXIS 5321

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

DecidedMay 27, 1957

StatusPublished

This text of 3 A.D.2d 945 (White Lumber & Millwork Corp. v. Andreola) 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

White Lumber & Millwork Corp. v. Andreola, 3 A.D.2d 945, 164 N.Y.S.2d 119, 1957 N.Y. App. Div. LEXIS 5321 (N.Y. Ct. App. 1957).

Pincite

Opinion

-In a representative action by a materialman against the owners of real property and the general contractor to enforce trusts, pursuant to article 3-A of the Lien Law, defendants moved to open their default in pleading and to vacate the judgment entered thereon after inquest before the court. Plaintiff appeals from an order granting said motion, on terms, to the extent of opening the [946]*946default and granting leave to serve an answer. Order reversed, with $10 costs and disbursements, and motion denied, with $10 costs. Although plaintiff demanded that defendants serve a statement of account in April, 1955, about seven months before the action was begun and before defendant George Andreola allegedly took sick, no such statement has been .furnished to date. During the seven-month interval between the service of the complaint and the entry of judgment, the numerous letters and notices sent by plaintiff's attorneys to defendants and their attorneys were ignored, except for one telephone call by defendant George Andreola after he had been notified that an application to punish defendants for contempt was imminent. Although one member of the firm of attorneys representing defendants was ill and unable to function when the judgment was entered and thereafter until his death, there is nothing to show that his partner was unable to communicate with plaintiff’s attorneys. No proposed answer was submitted on the application to open the default herein, and the only indication of the existence of a good defense is a statement by defendants that they suffered a deficit on the project. In our opinion, the default was willful, intentional and deliberate, and not inadvertent or excusable. In addition, there is not a sufficient showing of merit. Nolan, P. J., Wenzel, Murphy, Ughetta and Hallinan, JJ., concur.

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-In a representative action by a materialman against the owners of real property and the general contractor to enforce trusts, pursuant to article 3-A of the Lien Law, defendants moved to open their default in pleading and to vacate the judgment entered thereon after inquest before the court. Plaintiff appeals from an order granting said motion, on terms, to the extent of opening the [946]*946default and granting leave to serve an answer. Order reversed, with $10 costs and disbursements, and motion denied, with $10 costs. Although plaintiff demanded that defendants serve a statement of account in April, 1955, about seven months before the action was begun and before defendant George Andreola allegedly took sick, no such statement has been .furnished to date. During the seven-month interval between the service of the complaint and the entry of judgment, the numerous letters and notices sent by plaintiff's attorneys to defendants and their attorneys were ignored, except for one telephone call by defendant George Andreola after he had been notified that an application to punish defendants for contempt was imminent. Although one member of the firm of attorneys representing defendants was ill and unable to function when the judgment was entered and thereafter until his death, there is nothing to show that his partner was unable to communicate with plaintiff’s attorneys. No proposed answer was submitted on the application to open the default herein, and the only indication of the existence of a good defense is a statement by defendants that they suffered a deficit on the project. In our opinion, the default was willful, intentional and deliberate, and not inadvertent or excusable. In addition, there is not a sufficient showing of merit. Nolan, P. J., Wenzel, Murphy, Ughetta and Hallinan, JJ., concur.

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Bluebook (online)

3 A.D.2d 945, 164 N.Y.S.2d 119, 1957 N.Y. App. Div. LEXIS 5321, Counsel Stack Legal Research, https://law.counselstack.com/opinion/white-lumber-millwork-corp-v-andreola-nyappdiv-1957.