Marine Midland Bank, N. A. v. Bowker
| Decision Date | 10 March 1982 |
| Citation | 448 N.Y.S.2d 123,112 Misc.2d 1044 |
| Court | New York County Court |
| Parties | MARINE MIDLAND BANK, N. A., Plaintiff, v. Edward T. BOWKER, Defendant. Edward T. BOWKER, Third-Party Plaintiff, v. John F. BYRNE, d/b/a Jack Byrne Ford & Mercury, and For-Del, Inc., d/b/a Ford Motor Company, Third-Party Defendants. |
Bernard, Overton & Russell, Albany, for plaintiff.
Paul M. Whitaker, Albany, for defendant and third-party plaintiff.
Schrade & Kimmey, Albany, for third-party defendant, John F. Byrne, d/b/a Jack Byrne Ford & Mercury; Karl H. Schrade, Albany, of counsel.
By notice of motion, dated February 1, 1982, third-party defendant John F. Byrne (hereinafter "Byrne") moves for leave to reargue a prior motion to relieve his default in this action, and for an order vacating the prior decision finding Byrne in default, and permitting him to interpose a third-party answer.
By notice of motion, dated February 2, 1982, third-party defendants Byrne, and For-Del, Inc. (hereinafter "Byrne") move for an order vacating the default judgment and dismissing the third-party complaint on the ground that that complaint seeks damages in excess of the $10,000 jurisdictional limit of this Court.
The third-party plaintiff opposes Byrne's motions, and cross-moves for various forms of affirmative relief.
In regard to the motion to re-argue, Byrne urges this Court to partially excuse the law office failure which purportedly resulted in the default, and adopt the approach of such decision as Cockfield v. Apotheker, 81 A.D.2d 651(6), 438 N.Y.S.2d 379, by vacating the default, and monetarily penalizing the defaulting party's attorney or attorneys.
However, Byrne appears to have misapprehended the thrust of this Court's prior decision to grant the default judgment. The Court did not ground its decision on law office failure, but rather on the defendant's own failure to take the necessary measures to initiate a defense. This is an instance, not of a bewildered litigant at the mercy of a dilatory law office, but rather of a party who, perhaps lulled by the security of an indemnification agreement with Ford Motor Company, failed to initiate action by his own attorneys, until shocked out of complacency by the restraint of his bank accounts. The Court finds no reason to excuse that kind of default on the part of a defendant.
Regarding the motion to set aside the judgment and third-party action upon the grounds that the ad damnum clause and...
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Marine Midland Bank, N.A. v. Bowker
...Both motions were denied, and Byrne and Ford have appealed. The appeal from the denial of the motion to reargue is dismissed, 112 Misc.2d 1044, 448 N.Y.S.2d 123, since no appeal lies from an order, 109 Misc.2d 39, 439 N.Y.S.2d 617, denying reargument (see, e.g., Carlucci v. Poughkeepsie New......