Ross Bicycles, Inc. v. Citibank, N.A.
| Decision Date | 11 April 1989 |
| Parties | ROSS BICYCLES, INC., Plaintiff-Respondent, v. CITIBANK, N.A., Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
A. Gerwin, New York City, for plaintiff-respondent.
W.F. Kuntz, II, New York City, for defendant-appellant.
Before MURPHY, P.J., and ASCH, ROSENBERGER, SMITH and RUBIN, JJ.
Order, Supreme Court, New York County (Ethel Danzig, J.), entered on or about March 3, 1988, which denied defendant-appellant's motion pursuant to CPLR 5015(a)(1) and (2), to be relieved of the default judgment entered against it on June 10, 1987, and which granted plaintiff-respondent's motion to vacate the temporary restraining order issued December 7, 1987, unanimously modified, on the law, to vacate the default judgment entered against appellant and the matter remanded for further proceedings, and otherwise affirmed, without costs.
This is the second appeal by Citibank, N.A., from the judgment against it entered June 10, 1987. The initial appeal from that judgment was dismissed by this Court as nonappealable because the judgment had been granted on default. (Ross Bicycles, Inc. v. Citibank, N.A., 134 A.D.2d 181, 520 N.Y.S.2d 769 [1st Dept.1987] ). Supreme Court, however, upon defendant-appellant's motion to vacate the default judgment, held that it had not been entered upon Citibank's default. The IAS Court deemed appellant's motion merely "an untimely attempt at seeking reargument".
The decision of this Court in the first appeal was based on a finding that the judgment appealed from had been entered upon Citibank's default. It was res judicata as to this issue and was binding upon Supreme Court. The doctrine of stare decisis requires that courts of original jurisdiction follow the decisions and precedents of the Appellate Division, which have jurisdiction of law and fact (People v. Blount, 82 Misc.2d 964, 968-969, 370 N.Y.S.2d 437 [County Court, Nassau County 1975]; U.S. Gypsum Co. v. Riley-Stoker Corp., 11 Misc.2d 572, 575, 174 N.Y.S.2d 18 [Supreme Court, Genesee County 1958], affd. 7 A.D.2d 894, 182 N.Y.S.2d 320 [4th Dept 1959], revd. on other grounds, 6 N.Y.2d 188, 189 N.Y.S.2d 145, 160 N.E.2d 454 [1959] ).
Supreme Court also erred in rejecting the merit of appellant's argument that it had twenty days in which to respond to the CPLR 3213 motion for summary judgment in lieu of complaint. CPLR 3213 expressly incorporates the statutory time limits of CPLR...
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