Leary v. Pou Poune, Inc.

• Decision Date: 01 June 2000
• Citation: 273 A.D.2d 8,708 N.Y.S.2d 108
• Parties: KATHERINE LEARY, Respondent,<BR>v.<BR>POU POUNE, INC., Defendant, and<BR>HISASHI KOBAYASKI, Individually and as Partner in Hoskob Associates, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

273 A.D.2d 8

708 N.Y.S.2d 108

KATHERINE LEARY, Respondent,

v.POU POUNE, INC., Defendant, andHISASHI KOBAYASKI, Individually and as Partnerin Hoskob Associates, et al., Appellants.

Decided June 1, 2000.

Concur — Williams, J.P., Lerner, Rubin, Saxe and Buckley, JJ.

Upon a showing of a lack of prejudice and a meritorious defense, a default judgment may be vacated and the action restored despite the existence of egregious law office failure (see, Martinez v New York City Tr. Auth.,183 AD2d 587).The failure to file an answer was clearly due to the derelictions of Hoskob's attorney.The record rebuts the presumption of abandonment or willfulness on the part of defendant.Therefore, Hoskob should not be deprived of its day in court by its attorney's neglect (Martinez v New York City Tr. Auth., supra).There is a sufficient showing of a meritorious defense based on the absence of control necessary to impose liability upon Hoskob, an out-of-possession landlord with a mere right of re-entry (see, Brooks v Dupont Assocs.,164 AD2d 847).Further, there is a lack of prejudice to plaintiff since defendant participated in...