Willis v. City of New York

• Decision Date: 26 October 1989
• Citation: 546 N.Y.S.2d 365,154 A.D.2d 289
• Parties: Ronald WILLIS, Plaintiff-Appellant, v. The CITY OF NEW YORK et al., Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 365

546 N.Y.S.2d 365

154 A.D.2d 289

Ronald WILLIS, Plaintiff-Appellant, v. The CITY OF NEW YORK et al., Defendants-Respondents.

Supreme Court, Appellate Division,

First Department.

Oct. 26, 1989.

A.J. McNulty, New York City, for plaintiff-appellant.

A. Weinstein, for defendants-respondents.

Before MURPHY, P.J., and KUPFERMAN, CARRO, KASSAL and WALLACH, JJ.

MEMORANDUM DECISION

Order, Supreme Court, Bronx County (Howard R. Silver, J.), entered on or about June 17, 1988, which denied a motion by the plaintiff for a severance and for leave to enter a default judgment against defendant Daniel Gaugheran, and which permitted defendants to serve an amended answer nunc pro tunc, unanimously affirmed, without costs.

The court properly denied the motion to enter a default judgment and permitted the defendants to serve an amended answer. See Mufalli v. Ford Motor Company, 105 A.D.2d 642, 481 N.Y.S.2d 703. The sufficiency of a statement of merit is ordinarily to be left to the discretion of the trial court (Fidelity and Deposit Company v. Andersen & Company, 60 N.Y.2d 693, 695, 468 N.Y.S.2d 464, 455 N.E.2d 1259), and we find no abuse of discretion has been demonstrated in this case. Further, the court has the authority, sua sponte, to grant relief pursuant to CPLR § 3012(d) even in the absence of a cross-motion seeking such relief. Shure v. Village of Westhampton Beach, 121 A.D.2d 887, 503 N.Y.S.2d 802.