Barajas v. Toll Bros., Inc.

Decision Date10 February 1998
Citation669 N.Y.S.2d 35,247 A.D.2d 242
Parties, 1998 N.Y. Slip Op. 1361 Francisco BARAJAS, et al., Plaintiffs-Respondents, v. TOLL BROTHERS, INC., a/k/a Toll Bros., Inc., Defendant-Appellant, and Toll Architecture, Inc., et al., Defendants.
CourtNew York Supreme Court — Appellate Division

Stuart H. Finkelstein, for Plaintiffs-Respondents.

Elizabeth Anne Bannon, for Defendant-Appellant.

Before WALLACH, J.P., and RUBIN, TOM and ANDRIAS, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Sheila Abdus-Salaam, J.), entered on or about February 21, 1997, denying defendant's motion to vacate a default judgment and extend its time to answer, unanimously reversed, on the law, the facts and in the exercise of discretion, without costs, the motion to vacate granted and the defendant's time to answer the complaint extended to 20 days after entry of this order.

Plaintiff commenced this personal injury action by summons and complaint served on defendant on or about September 30, 1996. On or about October 2, 1996, defendant forwarded the summons and complaint to its carrier, General Accident Insurance. The carrier, though, failed to contact its attorney, with the consequence that defendant unknowingly remained unrepresented, the complaint was not answered and a default was entered on December 11, 1996. Plaintiff's own evidence indicates that the carrier's claims adjuster did contact plaintiff's counsel on or about October 7, 1996, within the 20 day answer period (CPLR 320[a] ), to request additional information and documentation concerning the injury and to request an extension of time to answer the complaint. Plaintiff's counsel's October 7, 1996 responsive letter declined the requests except to demand an answer within seven days, coupled with a warning that counsel would seek a default judgment. On or about November 6, 1996, the claims adjuster left two messages with counsel requesting information about the injuries and an extension of time to answer. In plaintiff's counsel's November 6, 1996 responsive letter, he again declined the requests and now indicated that he already had moved to enter a default judgment. The order was entered December 11, 1996 and the matter was set down for an inquest. When an attorney for defendant finally contacted plaintiff's counsel on January 3, 1997, requesting an extension of time to answer, plaintiff's counsel informed defense counsel of the entry of a default judgment. Thereafter, defense counsel contacted plaintiff's counsel seeking vacatur on consent on condition that ...

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10 cases
  • Parisien v. Allstate Ins. Co.
    • United States
    • New York Supreme Court — Appellate Term
    • August 12, 2022
    ...of neglect and counsel's prompt actions, upon entering the case, in seeking to vacate the default (see Barajas v. Toll Bros. , 247 A.D.2d 242, 242-243, 669 N.Y.S.2d 35 [1998] ), the meritorious defense of lack of coverage, which plaintiff has never disputed, plaintiff's failure to claim any......
  • Burke v. Mulberry St. Bar, LLC
    • United States
    • New York Supreme Court
    • March 16, 2016
    ...carrier failed to assign counsel, despite the fact that the complaint was promptly forwarded to the carrier); Barajas v. Toll Bros., 247 A.D.2d 242 (1st Dept 1998) (finding a reasonable excuse where an insurance carrier failed to forward summons and complaint to counsel). However, where a d......
  • Parker v. I.E.S.I. N.Y. Corp.
    • United States
    • New York Supreme Court — Appellate Division
    • January 25, 2001
    ...(Leary v. Pou Poune, Inc., 273 A.D.2d 8), and since the negligence of the insurer is akin to law office failure (see, Barajas v. Toll Bros., Inc., 247 A.D.2d 242; Murphy v. D.V. Waste Control Corp., 124 A.D.2d 573; Ganvey Merch. Corp. v. Knudsen Elev. Corp., 169 A.D.2d 518), we now find tha......
  • 400 West 148th St. Hous. v. Argyle Dev. LLC, INDEX NO. 108624/10
    • United States
    • New York Supreme Court
    • December 27, 2010
    ...assign counsel despite timely receipt of plaintiff's complaint, the Court will analyze it in a similar manner (see Barajas v Toll Bros., Inc., 247 A.D.2d 242 [1st Dept 1998]). Furthermore, where a defendant's default was not intentional and the delay in moving to vacate the default was not ......
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