Stuart v. Kushner
| Decision Date | 03 April 2007 |
| Docket Number | 2006-04456. |
| Parties | STAN STUART, Doing Business as SILVER RIVER MARINA, Respondent, v. LINDA TENNEN KUSHNER, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Ordered that the order is reversed, on the law and in the exercise of discretion, with costs, those branches of the defendant's motion which were to vacate her default in appearing or answering the complaint and for leave to serve an answer are granted, the answer is deemed served, and the matter is remitted to the Supreme Court, Nassau County, to determine on the merits that branch of the defendant's motion which was to dismiss the complaint pursuant to CPLR 3211 (a) (7).
The Supreme Court improvidently exercised its discretion in denying that branch of the defendant's motion which was to vacate her default in timely appearing or answering the complaint. In light of the lack of any prejudice to the plaintiff resulting from the short two-month delay, the lack of willfulness on the part of the defendant, the existence of potentially meritorious defenses, and the public policy favoring the resolution of cases on the merits, the defendant's default in appearing or answering the complaint should have been excused (see CPLR 2004; Schonfeld v Blue & White Food Prods. Corp., 29 AD3d 673, 674 [2006]; Yonkers Rib House, Inc. v 1789 Cent. Park Corp., 19 AD3d 687, 688 [2005]; Trimble v SAS Taxi Co. Inc., 8 AD3d 557, 558 [2004]), and leave to serve an answer should have been granted (see CPLR 3012 [d]).
In light of our determination, we remit the matter to the Supreme Court, Nassau County, to determine on the merits that branch of the defendant's motion which was to dismiss the complaint pursuant to CPLR 3211 (a) (7) (see Campbell v Vakili, 30 AD3d 457 [2006]; Korpalski v Lau, 17 AD3d 536, 538 [2005]; Galati v Brice, 290 AD2d 530, 531 [2002]).
...
To continue reading
Request your trial
-
PDK Labs, Inc. v. G.M.G. Trans W. Corp.
...v. Horowitz, 88 A.D.3d 992, 993, 931 N.Y.S.2d 536;Feder v. Eline Capital Corp., 80 A.D.3d 554, 555, 914 N.Y.S.2d 659;Stuart v. Kushner, 39 A.D.3d 535, 536, 833 N.Y.S.2d 187;Schonfeld v. Blue & White Food Prods. Corp., 29 A.D.3d 673, 674, 814 N.Y.S.2d 711). Accordingly, the Supreme Court pro......
-
Stewart Title Ins. Co. v. Bank of N.Y. Mellon, Formerly Known Y., for the Certificateholders Cwalt, Inc.
...at 60–61, 66, 970 N.Y.S.2d 260 ; Arias v. First Presbyt. Church in Jamaica, 97 A.D.3d 712, 712, 948 N.Y.S.2d 665 ; Stuart v. Kushner, 39 A.D.3d 535, 536, 833 N.Y.S.2d 187 ).The Supreme Court also properly granted that branch of BoNY's cross motion which was to dismiss Stewart's complaint in......
-
Delbello, Donnellan, Weingarten, Wise & Wiederkehr, LLP v. Lopez
...counterclaims was willful or that the defendant suffered actual prejudice due to the delay. (See generally Stuart v. Kushner, 39 A.D.3d 535, 833 N.Y.S.2d 187 (2d Dept. 2007)). Accordingly, defendant's motion for default judgment on its counterclaims is denied and the plaintiff's default in ......
-
Velez v. Mr. Demolition, Inc.
...Gonzalez v. Seejattan, 123 A.D.3d 762, 763, 996 N.Y.S.2d 536 ; Hosten v. Oladapo, 52 A.D.3d 658, 858 N.Y.S.2d 915 ; Stuart v. Kushner, 39 A.D.3d 535, 536, 833 N.Y.S.2d 187 ; Schonfeld v. Blue & White Food Prods. Corp., 29 A.D.3d 673, 674, 814 N.Y.S.2d 711 ). The court, however, should not h......