Cotter v. Consolidated Edison Co. of New York, Inc.
| Decision Date | 28 February 1984 |
| Citation | 99 A.D.2d 738,472 N.Y.S.2d 384 |
| Parties | Michael COTTER, Plaintiff-Respondent, v. CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., et al., Defendants-Appellants. |
| Court | New York Supreme Court — Appellate Division |
D.E. Clifton, for plaintiff-respondent.
S.S. Rosenrauch, Brooklyn, for defendants-appellants.
Before ASCH, J.P., and SILVERMAN, BLOOM, FEIN and KASSAL, JJ.
Order, Supreme Court, New York County, entered August 18, 1982, denying the motion by appellants Consolidated Edison and Dorrer to vacate the default judgment entered April 1, 1982, reversed, on the law, the facts and in the exercise of discretion, to grant the motion to vacate the default judgment on condition that Consolidated Edison pay to plaintiff's attorneys the sum of $2500 within 20 days after service of a copy of the order to be entered on the appeal, and defendants serve their answer within said period, without costs or disbursements. Upon failure to comply with the foregoing, the order is affirmed, with costs and disbursements to plaintiff.
The excuse offered by appellants for their default in answering is somewhat dubious, particularly considering that there had been no service upon defendant Kinkel when appellants' answer was interposed. Nevertheless, there was a relatively short delay, no resultant prejudice and, in view of the existence of a possible meritorious defense, at least with respect to the second cause of action for wrongful discharge (see Murphy v. American Home Products, 58 N.Y.2d 293, 461 N.Y.S.2d 232, 448 N.E.2d 86), we are not persuaded that the circumstances warrant the drastic remedy of entry of a default judgment. Accordingly, we excuse the default on the condition provided and upon the prompt service by appellants of their responsive pleading (CPLR 2005, 3012[d] ). In our view, the case should proceed to a disposition on the merits.
All concur.
To continue reading
Request your trial
-
E. 168th St. Assocs. v. Castillo
...proceeding, a default judgment can be vacated where the default was neither willful or intentional. ( Cotter v. Consol. Edison Co. of New York , 99 A.D.2d 738, 738, 472 N.Y.S.2d 384 [1984] ; Clypeta Realty v. Levy , NYLJ Feb. 20, 1991, at 25 col. 1 [App Term 1st Dept.] ["there may have been......
-
Dawley v. Minier, 1
...to warrant imposition of a sanction as a condition of permitting late service of a pleading (see, Cotter v. Consolidated Edison Co. of N.Y., 99 A.D.2d 738, 472 N.Y.S.2d 384; Lindo v. Evans, 98 A.D.2d 765, 469 N.Y.S.2d 481; Muney Design v. Roscoe Mgt. Co., 97 A.D.2d 712, 468 N.Y.S.2d ...
-
Scott v. Allstate Ins. Co.
...the circumstances warrant the drastic remedy of the entry of a default judgment ..." (Cotter v. Consolidated Edison Company of New York, Inc., et al., 99 A.D.2d 738, 472 N.Y.S.2d 384 (1st Dept.1984)). Accordingly, we vacate the default judgment, and grant that part of defendant's cross-moti......
-
Kaplow v. Katz
...any prejudice to Eaton, Special Term did not abuse its discretion in vacating the plaintiffs' default (see, Cotter v. Consolidated Edison Co. of N.Y., 99 A.D.2d 738, 472 N.Y.S.2d 384; see also, Heffney v. Brookdale Hosp. Center, 102 A.D.2d 842, 476 N.Y.S.2d 609, appeal dismissed 63 N.Y.2d 7......