Tat Sang Kwong v. Budge-Wood Laundry Service, Inc.

• Decision Date: 01 November 1983
• Docket Number: BUDGE-WOOD
• Citation: 468 N.Y.S.2d 110,97 A.D.2d 691
• Parties: TAT SANG KWONG, etc., et al., Plaintiffs-Respondents, v.LAUNDRY SERVICE, INC., Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 110

468 N.Y.S.2d 110

97 A.D.2d 691

TAT SANG KWONG, etc., et al., Plaintiffs-Respondents, v. BUDGE-WOOD LAUNDRY SERVICE, INC., Defendant-Appellant.

Supreme Court, Appellate Division First Department.

Nov. 1, 1983.

W.E. Fay, III, New York City, for defendant-appellant.

Before KUPFERMAN, J.P., and SANDLER, SULLIVAN, FEIN and MILONAS, JJ.

MEMORANDUM DECISION.

Appeal from the order of the Supreme Court, Bronx County entered on March 1, 1983, which denied defendant's motion to vacate the order of inquest and open defendant's default with leave to renew upon submission of a further affidavit of merits, is dismissed, without costs or disbursements, as superceded by the appeal from the order of June 7, 1983.

Order of the Supreme Court, Bronx County entered on June 7, 1983, which denied defendant's motion to renew its previous application to stay the inquest of this action, vacate the order of inquest and open its default, is reversed on the law the facts and in the exercise of discretion, without costs or disbursements, the order of inquest vacated, the default vacated and the matter restored to the trial calendar.

The instant case involves a claim by plaintiffs for damages arising out of personal injuries allegedly sustained as a result of an automobile accident which occurred on January 21, 1980 in Manhattan between a motor vehicle operated by plaintiff Arthur Kwong and owned by plaintiff Lodge Service Corp. and a truck leased by defendant Budge-Wood Laundry Service, Inc. and operated by Hubert E. Mills, one of its employees. The action was commenced against defendant Budge-Wood on June 22, 1982 by service of a summons and complaint on the New York Secretary of State. By notice of motion dated December 14, 1982, plaintiffs moved for an order setting the matter down for an inquest against Budge-Wood on the ground that approximately six months had elapsed since the date of service, and defendant had failed to appear in the action. It is defendant's unsuccessful effort in Special Term to vacate the order of inquest, open its default and restore the case to the calendar which is the subject of the present appeal.

Section 5015(a)(1) of the CPLR provides that a court may relieve a party from an "excusable" default upon "such terms as may be just." This has been interpreted to mean that a party seeking to vacate a default must demonstrate a reasonable excuse for the default and a prima facie showing of a meritorious defense to the action. (Barasch v....