Ingenito v. Grumman Corp.
| Decision Date | 05 April 1993 |
| Citation | 596 N.Y.S.2d 83,192 A.D.2d 509 |
| Parties | Joseph INGENITO, et al., Appellants, v. GRUMMAN CORPORATION, et al., Respondents, et al., Defendant. |
| Court | New York Supreme Court — Appellate Division |
Zimmer & Mazzei, Commanck (Cahn Wishod Wishod & Lamb, Scott M. Karson, of counsel), for appellants.
Curtis, Zaklukiewicz, Vasile, Devine & McElhenny, Merrick (Paul S. Devine, of counsel), for respondent Contract Alterations Corp.
de Cicco, McCorry, Cardoza & Herrmann, Garden City (Barbara M. Buckley and William Morrissey, Jr., of counsel), for respondent Grumman Corp.
Before THOMPSON, J.P., and MILLER, COPERTINO and PIZZUTO, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Nassau County (Colby, J.), dated October 1, 1991, which (1) granted the motion of the defendant Contract Alterations Corporation to dismiss the complaint pursuant to CPLR 3215(c) insofar as it is asserted against it, (2) denied the plaintiffs' cross motion for leave to enter judgment against Contract Alterations Corporation upon its default in answering, and (3) denied the plaintiff's motion for leave to amend the summons and complaint to substitute Grumman Aerospace Corporation for the defendant Grumman Corporation.
ORDERED that the order is modified, on the law, by deleting the provision thereof granting the motion of the defendant Contract Alterations Corporation and substituting therefor a provision denying that motion, and by deleting the provision thereof denying the plaintiffs' cross motion and substituting therefor a provision granting the cross motion; as so modified, the order is affirmed, with one bill of costs to the plaintiff, payable by Contract Alterations Corporation, and the matter is remitted to the Supreme Court, Nassau County, for entry of a default judgment against Contract Alterations Corporation.
The plaintiff Joseph Ingenito was injured when he fell off a scaffold while working on a construction site. On or about August 18, 1988, the plaintiffs served a summons and complaint upon Grumman Corporation, whom it believed to be the owner of the construction site, and Contract Alterations Corporation, the general contractor. Grumman Corporation answered and denied ownership of the building where the construction occurred and denied entering into a construction contract with Contract Alterations Corporation. On or about May 24, 1991, upon learning that Grumman Aerospace Corporation was the owner of the building where the accident occurred and a party to the construction contract, the plaintiffs moved, pursuant to CPLR 305(c), to amend the summons and complaint to substitute Grumman Aerospace Corporation for Grumman Corporation.
Contract Alterations Corporation neither appeared nor served an answer. From December 30, 1988, to June 25, 1990, the plaintiffs' attorney mailed several letters and made telephone calls to Contract Alterations Corporation and its insurance carrier, General Accident Insurance Co., inquiring as to when he would receive an answer. In April 1991 the plaintiffs' attorney spoke with an employee of General Accident Insurance Co., who informed him that the matter had been sent to its outside counsel, McDonald & O'Connor. Later that month, McDonald & O'Connor moved, pursuant to CPLR 3215(c), on behalf of the Contract Alterations Corporation to dismiss the complaint for failure to enter a default judgment. The plaintiffs cross-moved for leave to enter a default judgment against Contract Alterations Corporation.
An action is deemed abandoned where a default has occurred and where a plaintiff has failed to seek a default judgment within one year after the default (CPLR 3215[c]. Under such circumstances, to avoid dismissal of the complaint as abandoned, the plaintiffs must offer a reasonable excuse for their delay and must demonstrate that their complaint is meritorious (see, Eaves v. Ocana, 122 A.D.2d 18, 504 N.Y.S.2d 187; Manago v. Giorlando, 143 A.D.2d 646, 647, 533 N.Y.S.2d 106). In this case, the plaintiffs did not abandon the...
To continue reading
Request your trial
-
Deutsche Bank Nat'l Trust Co. v. Bills
...that the plaintiff did not abandon the action ( see, e.g., Patterson v. Patterson, 220 A.D.2d 731, 633 N.Y.S.2d 75;Ingenito v. Grumman Corp., 192 A.D.2d 509, 596 N.Y.S.2d 83;Byk–Chemie GmbH v. Efka Chems., 161 A.D.2d 196, 554 N.Y.S.2d 582).” (Home Sav. of America, F.A. v. Gkanios, 230 A.D.2......
-
BAC Home Loans Servicing, L.P. v. Bordes
...to enter a judgment against defendant Charles Bordes within one year after his default ( CPLR 3215[c]; Ingenito v. Grumman Corp., 192 A.D.2d 509, 596 N.Y.S.2d 83 [2nd Dept.1993] ). The plaintiff, in addition, has offered proof that it was the holder of the subject mortgage and note at the t......
-
Merilus v. Nassau Inter Cnty. Express ("NICE")
...appellants' insurance carrier prior to the one-year deadline evinced an intent not to abandon the action (see Ingenito v. Grumman Corp., 192 A.D.2d 509, 510–511, 596 N.Y.S.2d 83 ). Further, the Supreme Court providently exercised its discretion in accepting the plaintiff's excuse for the de......
-
Feszczyszyn v. General Motors Corp.
...been properly served, and (2) the correct defendant would not be prejudiced by granting the amendment sought' " (Ingenito v. Grumman Corp., 192 A.D.2d 509, 511, 596 N.Y.S.2d 83, quoting Ober v. Rye Town Hilton, 159 A.D.2d 16, 20, 557 N.Y.S.2d 937; see, Pugliese v. Paneorama Italian Bakery C......