Green v. Brunetti

CourtNew York City Municipal Court
Writing for the CourtABRAHAM R. MARGULIES
Citation220 N.Y.S.2d 981,31 Misc.2d 477
Decision Date08 November 1961
PartiesEdward GREEN, Plaintiff, v. Sittiner BRUNETTI and Messing Bakeries, Inc., Defendants.

Page 981

220 N.Y.S.2d 981
31 Misc.2d 477
Edward GREEN, Plaintiff,
v.
Sittiner BRUNETTI and Messing Bakeries, Inc., Defendants.
Municipal Court of City of New York, Borough of Queens,
Fifth District.
Nov. 8, 1961.

Page 982

Jack Nadel, Brooklyn, for plaintiff.

Thomas F. Keane, Brooklyn, for defendant Brunetti.

ABRAHAM R. MARGULIES, Justice.

The defendant, Brunetti, by order to show cause is seeking to be relieved from an order of this court and given an opportunity to contest the validity of service of a summons.

If the granting of the application depended in any way upon the moving papers it would be denied. It appears that little interest or concern was evinced by the defendant in the Civil Practice Act or the Municipal Court Code. The appropriate sections were disregarded as if they never existed. Not only did the defendant fail to follow the procedure as outlined by Municipal Court Code, § 88 but when he was in default failed to set forth in the moving papers what had transpired and attach copy of pleadings and order of this court.

Page 983

Courts are vested both by statute (Sec. 108, Civil Practice Act) and by inherent power with discretion to open defaults at any stage and in all character of actions in order to further justice. [Vanderbilt v. Schreyer, 81 N.Y. 646.]

It is only where the default has been intentional, wilful, or where defendant had something wrong or acted in bad faith that relief would be denied. [Baldwin v. Yellow Taxi Corp., 221 App.Div. 717, 225 N.Y.S. 423.]

In order to answer the question as to whether defendant is entitled to relief requested, an examination of the alleged facts is in order.

The plaintiff sustained property damages as a result of an automobile accident which took place on 8/20/58 and seeks to recover $850 from the defendant. Plaintiff claims that a summons was personally served on the defendant on 8/10/61, ten days before the statute of limitations would have tolled. The defendant contended that he was not served personally but found the summons under his door. Attorney [31 Misc.2d 478] for defendant prepared on 8/16/61 a notice of motion returnable 9/6/61 to set aside the service. The said notice of motion was served on attorney for plaintiff on 8/23/61 but did not file original thereof with the court until 9/7/61.

On 9/6/61 the plaintiff and his witnesses appeared, but neither defendant nor his papers were before the court. At request of plaintiff the matter was adjourned to 9/13/61. However, without bothering to determine what had happened with motion returnable 9/6/61 the defendant on 9/8/61 prepared a new notice, served the plaintiff on 9/13/61 and made same returnable on 9/27/61. The moving papers were filed with the clerk on 9/14 and put on the calendar of 9/27.

On 9/27 the plaintiff and his witnesses were in court once again to prove the service,...

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2 practice notes
  • Forstman v. Arluck
    • United States
    • New York Supreme Court Appellate Division
    • August 6, 1979
    ...excusable default should not result in the denial of plaintiff's substantial legal right to commence a new action (see Green v. Brunetti, 31 Misc.2d 477 (220 N.Y.S.2d 981))" (Gottlieb v. Brodsky, 57 A.D.2d 885, 394 N.Y.S.2d The public policy in favor of disposing of actions on their me......
  • Gottlieb v. Brodsky
    • United States
    • New York Supreme Court Appellate Division
    • May 16, 1977
    ...excusable default should not result in the denial of plaintiff's substantial legal right to commence a new action (see Green v. Brunetti, 31 Misc.2d 477, 220 N.Y.S.2d However, we feel that the imposition of $100 costs was unwarranted under the circumstances of this case. ...
2 cases
  • Forstman v. Arluck
    • United States
    • New York Supreme Court Appellate Division
    • August 6, 1979
    ...excusable default should not result in the denial of plaintiff's substantial legal right to commence a new action (see Green v. Brunetti, 31 Misc.2d 477 (220 N.Y.S.2d 981))" (Gottlieb v. Brodsky, 57 A.D.2d 885, 394 N.Y.S.2d The public policy in favor of disposing of actions on their me......
  • Gottlieb v. Brodsky
    • United States
    • New York Supreme Court Appellate Division
    • May 16, 1977
    ...excusable default should not result in the denial of plaintiff's substantial legal right to commence a new action (see Green v. Brunetti, 31 Misc.2d 477, 220 N.Y.S.2d However, we feel that the imposition of $100 costs was unwarranted under the circumstances of this case. ...

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