Sacramona v. Scalia
| Decision Date | 27 May 1971 |
| Citation | 321 N.Y.S.2d 632,36 A.D.2d 942 |
| Parties | Dominick SACRAMONA, Plaintiff-Respondent, v. John SCALIA and Stella Scalia, d/b/a 521 East 72nd Street Co., Defendants-Appellants. |
| Court | New York Supreme Court — Appellate Division |
E. Miller, New York City, for plaintiff-respondent.
R. Bakalor, New York City, for defendants-appellants.
Before McGIVERN, J.P., and MARKEWICH, KUPFERMAN, TILZER and EAGER, JJ.
On this appeal from an amended judgment of the Supreme Court, New York County, entered on November 25, 1970, upon an order entered on June 17, 1969, granting plaintiff's motion for summary judgment and after an assessment of damages, which brings up for review pursuant to CPLR 5501(a)(1) an order entered October 13, 1969, denying defendants' motion to vacate their default in opposing the motion for summary judgment, the order denying the motion to open the default is unanimously reversed on the law and the facts, and the motion is granted, on condition that defendants-appellants pay to the plaintiff $500 costs within 30 days from the date of entry of a copy of the order to be entered hereon, in addition to $50 costs and disbursements of this appeal; and upon complying with those conditions, the order entered on June 17, 1969 is unanimously reversed, on the law, and the motion for summary judgment denied, and the amended judgment entered on November 25, 1970 is unanimously reversed, on the law, and vacated. In the interests of justice, the plaintiff will be granted a preference.
Initially, plaintiff moved for summary judgment. That motion was not opposed by the defendants and was granted by order entered June 17, 1969, and a trial on the issue of damages was directed. Thereafter, the defendants moved to vacate their default, which motion was denied by order entered October 31, 1969. The defendants thereafter appealed from the denial of the motion to vacate the order granting summary judgment. However, such appeal was not perfected and was dismissed by order of this Court dated January 6, 1970, the motion to dismiss being unopposed. A trial as to the issue of damages was thereafter held, a verdict rendered and final judgment was entered from which the defendants appeal.
Plaintiff urges that the defendants having previously appealed from the order denying the motion to vacate the order granting summary judgment and having had such appeal dismissed for failure to prosecute, cannot review the same order or an appeal from the judgment. Hence, plaintiff moves to dismiss the appeal insofar as it seeks review of the order denying the motion to vacate. This position is without merit. Recently, this Court stated,
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...That fact in and of itself does not normally warrant nor require the granting of summary judgment to a plaintiff (Sacramona v. Scalia, 36 A.D.2d 942, 943, 321 N.Y.S.2d 632). However, the Court of Appeals noted that there may be cases where plaintiff's Prima facie proof is so convincing that......
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...Row, 77 Hun 380, 28 N.Y.S. 849) purport to rely on Drummond (supra) and Palmer (supra), or upon no authority at all (Sacramona v. Scalia, 36 A.D.2d 942, 321 N.Y.S.2d 632; Whyman & Whyman v. Philips, 36 A.D.2d 812, 320 N.Y.S.2d 316) and would superficially appear contrary to our determinatio......
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