Piazza v. Hastings Associates

• Citation: 103 A.D.2d 738,477 N.Y.S.2d 596
• Parties: James PIAZZA, Plaintiff, v. HASTINGS ASSOCIATES, Respondent, Jacar Demolition Corp., Appellant.
• Decision Date: 02 July 1984
• Court: New York Supreme Court Appellate Division

Page 596

477 N.Y.S.2d 596

103 A.D.2d 738

James PIAZZA, Plaintiff, v. HASTINGS ASSOCIATES, Respondent, Jacar Demolition Corp., Appellant.

Supreme Court of New York, Appellate Division, Second Department.

July 2, 1984

Killarney, Fabiani & Brody, New York City (Kevin B. Pollak, New York City, of counsel), for appellant. Nathan Cyperstein, New York City (Bonnie S. Kurtz, Long Beach, of counsel), for respondent.

In a negligence action to recover damages for personal injuries, Jacar Demolition Corp. appeals from (1) an order of the Supreme Court, Westchester County (Buell, J.), entered April 11, 1983, which denied its motion to vacate its default in appearing and answering a third-party complaint, and (2) an order of the same court, entered October 3, 1983, which denied its renewed motion for the same relief. Appeal from the order entered October 3, 1983 dismissed as academic, without costs or disbursements. Order entered April 11, 1983, reversed, as an exercise of discretion in the interest of justice, without costs or disbursements, and motion granted upon condition that the attorneys for defendant Jacar Demolition Corp. personally pay the sum of $750 to Hastings Associates. The third-party complaint served by Hastings Associates is deemed a cross claim. The time for Jacar Demolition Corp. to comply with the foregoing condition and to serve its answer to the cross claim is extended until 20 days after service upon it of a copy of the order to be made hereon, with notice of entry. If the condition is not complied with, orders affirmed, with one bill of costs. Under the totality of the circumstances, appellant's default in appearing and answering the third-party complaint can be attributed to law office failure. Hastings Associates has failed to assert any prejudice which will result to it from a vacatur of the default and accordingly Jacar Demolition Corp. should have an opportunity to defend the former's claim against it on the merits. However, an appropriate sanction has been imposed.

THOMPSON, J.P., and BRACKEN, RUBIN and EIBER, JJ., concur.