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Exact Tool and Die Corp. v. Bittlingmaier

Appellate Division of the Supreme Court of New York, Fourth Department
Jun 1, 1979
70 A.D.2d 1055 (N.Y. App. Div. 1979)

Opinion

June 1, 1979

Appeal from the Monroe Supreme Court.

Present — Dillon, P.J., Cardamone, Schnepp, Doerr and Moule, JJ.


Order unanimously reversed, without costs, and motion denied. Memorandum: It was an improvident exercise of Special Term's discretion to grant plaintiff a default against defendant where defendant's attorney had effected service of defendant's answer two days late and appeared before Special Term on defendant's behalf in opposition to the motion for a default. The complaint was served on January 16, 1978, service of the answer was due 20 days thereafter (CPLR 3012, subd [a]). By stipulation that date was extended to February 15, 1978. Defendant's verified answer dated February 16 was served on plaintiff's attorneys on February 17. The opposition to plaintiff's motion for a default judgment should have been treated by Special Term, as urged by defendant, as a motion to open the default in pleading (CPLR 2004). So considered, the motion should have been granted since an opportunity to defend and have one's day in court on the merits is favored as in the interest of justice (Michaud v. Loblaws, Inc., 36 A.D.2d 1013, 1014).


Summaries of

Exact Tool and Die Corp. v. Bittlingmaier

Appellate Division of the Supreme Court of New York, Fourth Department
Jun 1, 1979
70 A.D.2d 1055 (N.Y. App. Div. 1979)
Case details for

Exact Tool and Die Corp. v. Bittlingmaier

Case Details

Full title:EXACT TOOL AND DIE CORPORATION, Respondent, v. HERMAN BITTLINGMAIER…

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Jun 1, 1979

Citations

70 A.D.2d 1055 (N.Y. App. Div. 1979)

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