New York Annual Conference of United Methodist Church v. Preusch
| Decision Date | 19 February 1976 |
| Citation | 380 N.Y.S.2d 32,51 A.D.2d 711 |
| Parties | NEW YORK ANNUAL CONFERENCE OF the UNITED METHODIST CHURCH, Plaintiff-Respondent, v. Robert W. PREUSCH, Defendant-Appellant, and Richards, Ganly, Fries & Preusch, a partnership, et al., Defendants. |
| Court | New York Supreme Court — Appellate Division |
C. P. Bordwine, New York City, for plaintiff-respondent.
J. S. Williams, New York City, for defendant-appellant.
Before KUPFERMAN, J.P., and MURPHY, LUPIANO, BIRNS and SILVERMAN, JJ.
Order, Supreme Court, New York County, entered March 11, 1975, denying defendant Preusch's motion to vacate a default judgment for $5,673,844 is unanimously modified in the exercise of discretion so as to grant said motion to open the default on condition that said defendant shall pay $2,500 to plaintiff-respondent within twenty days after publication of this decision as partial compensation for its expenses. On compliance with such condition, defendant shall be granted twenty days after such date of publication to answer the complaint, but the judgment shall stand as security for the plaintiff's claim. In the event of failure by said defendant to pay such $2,500 within said twenty days, the judgment is affirmed; all without costs to either party against the other. We agree with Special Term that defendant was in default in answering the amended complaint. The amended complaint did not add 'new or additional claims for relief' requiring personal service upon defendant under CPLR § 3012; and Mr. Moffatt was defendant's authorized agent to receive the amended complaint. But the default was not a case of defendant's wilful and inexcusable ignoring of the amended complaint. It is true that he was given notice in writing that a default judgment would be taken if he did not answer. But during most of the period before and after the service of the amended complaint he was negotiating with plaintiff through an attorney with respect to the matter; he appeared and submitted to examination before trial; and when his first attorney decided not to represent him he tried to get another. The period of default between the expiration of the extended time to answer the amended complaint and the order directing an inquest was slightly over one month; the new attorney requested a stipulation opening the judgment about a month after the default judgment; and the notice of motion to vacate the default judgment was served slightly over two months after the inquest and...
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