Needleman v. Burger King, Inc.

• Decision Date: 10 March 1997
• Citation: 237 A.D.2d 339,655 N.Y.S.2d 68
• Parties: Barry NEEDLEMAN, et al., Appellants, v. BURGER KING, INC., et al., Defendants, Steven Zavco a/k/a Steven Zabwo, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 68

655 N.Y.S.2d 68

237 A.D.2d 339

Barry NEEDLEMAN, et al., Appellants, v. BURGER KING, INC., et al., Defendants, Steven Zavco a/k/a Steven Zabwo, Respondent.

Supreme Court, Appellate Division, Second Department.

March 10, 1997.

Michael Stewart Frankel, New York City, (Richard H. Bliss, of counsel), for appellants.

Jones Hirsch Connors & Bull, New York City, (Jonathan Judd, of counsel), for respondent.

Before MANGANO, P.J., and RITTER, SULLIVAN, ALTMAN and McGINITY, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Kohn, J.), dated February 28, 1996, as denied that branch of their cross motion which was for leave to enter a conditional default judgment against the defendant Steven Zavidow, sued herein as Steven Zavco, also known as Steven Zabwo, and, sua sponte, dismissed the complaint insofar as asserted against that defendant.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the plaintiffs' cross motion which was for leave to enter a conditional default judgment against the defendant Steven Zavidow, sued herein as Steven Zavco, also known as Steven Zabwo is granted unless that defendant serves an answer to the complaint within 30 days after service of a copy of this order with notice of entry.

It was an improvident exercise of the court's discretion to deny that branch of the plaintiffs' cross motion which was for leave to enter a conditional default judgment against the defendant Steven Zavidow, sued herein as Steven Zavco, also known as Steven Zabwo, and to dismiss the complaint insofar as asserted against him. Although the plaintiffs failed to seek leave to enter a default judgment within one year after Zavidow's default in answering, they demonstrated a reasonable excuse for the delay and the existence of a meritorious cause of action against Zavidow (see, CPLR 3215[c]; Ingenito v. Grumman Corp., 192 A.D.2d 509, 596 N.Y.S.2d 83; Braunstein v. Glachman, 157 A.D.2d 815, 551 N.Y.S.2d 801).