Cutrone v. General Motors Corp.

• Decision Date: 08 January 1990
• Citation: 549 N.Y.S.2d 747,157 A.D.2d 648
• Parties: Frank E. CUTRONE, Respondent, v. GENERAL MOTORS CORPORATION, et al., Defendants, Donald Donzelli, Appellant (and related actions).
• Court: New York Supreme Court — Appellate Division

Page 747

549 N.Y.S.2d 747

157 A.D.2d 648

Frank E. CUTRONE, Respondent, v. GENERAL MOTORS CORPORATION, et al., Defendants Donald Donzelli, Appellant (and related actions).

Supreme Court, Appellate Division Second Department.

Jan. 8, 1990.

Maloney, Murphy, McLoone, Nelson, Dobise & McGrane, Williston Park (Brian M. Hussey of counsel), for appellant.

Dinkes & Morelli, New York City (George Schwarz of counsel), for respondent.

Before THOMPSON, J.P., and LAWRENCE, KUNZEMAN and HARWOOD, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, the defendant Donzelli appeals (1) from an order of the Supreme Court, Nassau County (McCabe, J.), dated November 14, 1988, which directed his insurance carrier to file an answer on his behalf to the plaintiff's complaint, and (2) from so much of an order of the same court, dated December 8, 1988, as denied his motion pursuant to CPLR 3215(c) to dismiss the complaint.

ORDERED that the orders are affirmed, with one bill of costs.

Contrary to the appellant's contentions, the Supreme Court properly enforced a series of oral agreements evidenced by written stipulations through which the appellant's insurance carrier represented to the plaintiff's counsel that an answer would be served on behalf of the defendant Donald Donzelli. Although the plaintiff failed to take proceedings for entry of judgment within one year of the defendant Donzelli's default (see, CPLR 3215[c], the record substantiates the plaintiff's undisputed assertion that the defendant Donzelli's insurance carrier repeatedly represented that it would file an answer on his behalf waiving jurisdictional defenses. It is also undisputed that, in reliance upon the foregoing representations, the plaintiff refrained from serving new process upon the defendant Donzelli prior to the expiration of the applicable...