Abrams v. Resort Const. Corp.
| Decision Date | 24 January 1972 |
| Citation | 38 A.D.2d 735,329 N.Y.S.2d 335 |
| Parties | Robert ABRAMS, Respondent, v. RESORT CONSTRUCTION CORP. et al., Defendants, and Seaboard Pools, Inc., Appellant. |
| Court | New York Supreme Court — Appellate Division |
Francis J. Costello, for plaintiff-respondent; Raymond J. Nugent, Patchogue, of counsel.
Stockel & Press, Hauppauge, for defendant-appellant; William Palitz, New York City, of counsel.
Before RABIN, P.J., and HOPKINS, MARTUSCELLO, LATHAM and GULOTTA, JJ.
MEMORANDUM BY THE COURT.
In a personal injury action, defendant Seaboard Pools, Inc. appeals from an order of the Supreme Court, Suffolk County, entered June 19, 1970, which denied its motion to vacate a default judgment entered January 2, 1970, to dismiss the complaint as abandoned pursuant to CPLR 3215 (subd. (c)), and for other relief.
Order affirmed, with $10 costs and disbursements.
This action was commenced against several defendants in June of 1963 by the service of a summons without a complaint. A notice of appearance was served on behalf of defendant Seaboard Pools, Inc. Thereafter plaintiff served his complaint, but Seaboard defaulted in answering. Plaintiff failed to take proceedings for entry of judgment within one year after Seaboard's default and therefore dismissal of the complaint was required unless 'sufficient cause' were shown why it should not be dismissed (CPLR 3215, subd. (c); former Rules of Civ.Prac., rule 302).
In our opinion, such sufficient cause is shown in the record before us. It is uncontroverted that plaintiff is an unskilled laborer who lives in California with his wife and four children and it appears that multiple trips to this State for trial or assessment of damages would be beyond his means. After Seaboard's default in answering, Seaboard was kept informed of the status of the case at every stage of the proceedings and in fact was served with the note of issue, the statement of readiness, the demand for a jury and a notice of assessment of damages. Nevertheless, Seaboard wilfully chose to disregard these notices. It failed to move to open its default when the case was called for trial and it did not appear at the assessment of damages (cf. Ballard v. Billings & Spencer Co., 36 A.D.2d 71, 319 N.Y.S.2d 191). From these facts it is clear that plaintiff never intended to abandon the action as against Seaboard and that Seaboard's default was knowing and wilful. Therefore, Seaboard was in no wise misled into believing the complaint...
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...is not mandatory and, indeed, may not be had where the plaintiff establishes sufficient cause for delay. (Cf. Abrams v. Resort Constr. Corp., 38 A.D.2d 735, 329 N.Y.S.2d 335, mot. for lv. to app. den. 30 N.Y.2d 674, 332 N.Y.S.2d 106, 282 N.E.2d 890; Herzbrun v. Levine, 23 A.D.2d 744, 259 N.......
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Insurance Co. of North America v. Reifler
...brought by another party and has demonstrated sufficient cause why the complaint should not have been dismissed (Abrams v. Resort Constr. Corp., 38 A.D.2d 735, 329 N.Y.S.2d 335). Under the circumstances of this case, personal service of a complaint upon Rafsky after the expiration of the St......
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Abrams v. Seaboard Pools, Inc.
...1025 331 N.Y.S.2d 1025 30 N.Y.2d 484, 282 N.E.2d 335 Abrams v. Seaboard Pools, Inc. COURT OF APPEALS OF NEW YORK Mar 23, 1972 329 N.Y.S.2d 335, 38 A.D.2d 735 MOTION FOR LEAVE TO Dismissed. ...