Opinion
November 27, 1984
Appeal from the Supreme Court, New York County (Manuel A. Gomez, J.).
Pursuant to agreement with the defendants, the plaintiff, between April, 1977 and March, 1978, furnished labor and materials, which had a value of $164,111.94, to the defendants' premises, located at 58 West 89th Street in New York County. Since the defendants paid plaintiff only $72,610.52, on July 6, 1978, the plaintiff filed an amended mechanic's lien in the amount of $91,501.42. Subsequently, in April, 1979, plaintiff commenced the instant action against defendants to foreclose the lien.
In view of the fact that more than two years had passed from the commencement of this action and the defendants had not served an answer, the plaintiff, in July, 1981, moved for an order directing an inquest and an assessment of damages. Defendants opposed and asserted the defense that they had never been served with process in connection with the action. This issue of whether jurisdiction had been obtained was referred by Special Term for a hearing and report. Thereafter, a referee reported that the defendants had been "properly served with process". Plaintiff moved to confirm and defendants cross-moved to disaffirm the report. Special Term granted the motion to confirm. However, in addition, Special Term granted defendants leave to file an answer.
We find that Special Term abused its discretion in permitting defendants to file an answer, when they have been in default for over two years. Thus, we grant plaintiff's motion for an inquest.
Concur — Murphy, P.J., Sullivan, Ross, Asch and Kassal, JJ.