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Pappoe v. Custodio

Appellate Division of the Supreme Court of New York, First Department
Dec 12, 1989
156 A.D.2d 211 (N.Y. App. Div. 1989)

Opinion

December 12, 1989

Appeal from the Supreme Court, Bronx County (Bertram Katz, J.).


Although plaintiff's action became subject to dismissal after the passing of one year from the time of defendant's default (CPLR 3215 [c]; Perricone v City of New York, 62 N.Y.2d 661), the record indicates a forebearance by plaintiff so as to allow defendant's insurance carrier to investigate and defend in this automobile negligence action. The affidavit of merit by plaintiff is uncontested (see, Woodward v City of New York, 119 A.D.2d 749) and the excuse for delay offered by plaintiff's counsel indicates activity well within the one-year period specified in CPLR 3215 (c). (See, Fazio v C.B. Warehousing, 133 A.D.2d 737, 738; cf., Monzon v Sony Motor, 115 A.D.2d 714.) It is patently obvious that the delay herein was occasioned by the inability of defendant New York Zone Warehouse, Inc. to locate its driver, the named, but unserved, party. Upon the record before us, we cannot say that the granting of the default judgment was an abuse of discretion.

Concur — Sullivan, J.P., Ross, Carro, Milonas and Ellerin, JJ.


Summaries of

Pappoe v. Custodio

Appellate Division of the Supreme Court of New York, First Department
Dec 12, 1989
156 A.D.2d 211 (N.Y. App. Div. 1989)
Case details for

Pappoe v. Custodio

Case Details

Full title:ERIC PAPPOE, Respondent, v. ISRAEL CUSTODIO, Defendant, and NEW YORK ZONE…

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

Date published: Dec 12, 1989

Citations

156 A.D.2d 211 (N.Y. App. Div. 1989)
548 N.Y.S.2d 472

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