Willis v. City of New York

Appellate Division of the Supreme Court of New York

Willis v. City of New York

154 A.D.2d 289, 546 N.Y.S.2d 365, 1989 N.Y. App. Div. LEXIS 13406

Appellate Division of the Supreme Court of the State of New York·Decided October 26, 1989·Published·Cited by 2 cases

Opinion

— Order, Supreme Court, Bronx County (Howard R. Silver, J.), entered on or about June 17, 1988, which denied a motion by the plaintiff for a severance and for leave to enter a default judgment against defendant Daniel Gaugheran, and which permitted defendants to serve an amended answer nunc pro tunc, unanimously affirmed, without costs.

The court properly denied the motion to enter a default [290]*290judgment and permitted the defendants to serve an amended answer. (See, Mufalli v Ford Motor Co., 105 AD2d 642.) The sufficiency of a statement of merit is ordinarily to be left to the discretion of the trial court (Fidelity & Deposit Co. v Andersen & Co., 60 NY2d 693, 695), and we find no abuse of discretion has been demonstrated in this case. Further, the court has the authority, sua sponte, to grant relief pursuant to CPLR 3012 (d) even in the absence of a cross motion seeking such relief. (Shure v Village of Westhampton Beach, 121 AD2d 887.) Concur — Murphy, P. J., Kupferman, Carro, Kassal and Wallach, JJ.

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— Order, Supreme Court, Bronx County (Howard R. Silver, J.), entered on or about June 17, 1988, which denied a motion by the plaintiff for a severance and for leave to enter a default judgment against defendant Daniel Gaugheran, and which permitted defendants to serve an amended answer nunc pro tunc, unanimously affirmed, without costs.

The court properly denied the motion to enter a default [290]*290judgment and permitted the defendants to serve an amended answer. (See, Mufalli v Ford Motor Co., 105 AD2d 642.) The sufficiency of a statement of merit is ordinarily to be left to the discretion of the trial court (Fidelity & Deposit Co. v Andersen & Co., 60 NY2d 693, 695), and we find no abuse of discretion has been demonstrated in this case. Further, the court has the authority, sua sponte, to grant relief pursuant to CPLR 3012 (d) even in the absence of a cross motion seeking such relief. (Shure v Village of Westhampton Beach, 121 AD2d 887.) Concur — Murphy, P. J., Kupferman, Carro, Kassal and Wallach, JJ.

Willis v. City of New York, 154 A.D.2d 289, 546 N.Y.S.2d 365, 1989 N.Y. App. Div. LEXIS 13406 (N.Y. Ct. App. 1989).

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154 A.D.2d 289 (Willis v. City of New York) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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