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Rawson v. Austin

Appellate Division of the Supreme Court of New York, Fourth Department
Sep 19, 1975
49 A.D.2d 803 (N.Y. App. Div. 1975)

Opinion

September 19, 1975

Appeal from the Supreme Court, Onondaga County.

Present. — Marsh, P.J., Cardamone, Simons, Goldman and Witmer, JJ.


Order unanimously modified in accordance with memorandum and as modified affirmed, without costs. Memorandum: We do not find that Special Term's exercise of discretion was improvident in granting defendants' motion to open the default judgment. CPLR 5015 (subd [a]) empowers the court which rendered the judgment or order to relieve a party from it upon such terms as may be just. An inherent power not limited by statute is also possessed by the court to relieve a party from a judgment entered on a default (Michaud v Loblaws, Inc., 36 A.D.2d 1013), and in its exercise a court may open its own judgments for sufficient reason and in the furtherance of justice (Ladd v Stevenson, 112 N.Y. 325; Godfrey v Dreslin, 47 A.D.2d 594). Respondents presented a sufficient reason to excuse their default and their papers make a sufficient showing of a meritorious defense to the action. Since an opportunity to defend on the merits is in the interest of justice, it should be favored. (Ballard v Billings Spencer Co., 36 A.D.2d 71; Matter of Mento, 33 A.D.2d 650.) However, in view of the possibility of a lack of insurance coverage, Special Term should have imposed as conditions of the vacatur that the judgment stand as security (Pan American World Airways v Victoria Travel Agency, 39 A.D.2d 692; Epstein v Kutner, 38 A.D.2d 750; Treitel v Arnold Chait, Ltd., 20 A.D.2d 711) and that the sum collected by plaintiff's attorneys on execution ($1,192.90) not be transferred to the defendants as directed, but be held by the said attorneys as additional security pending the outcome of the trial.


Summaries of

Rawson v. Austin

Appellate Division of the Supreme Court of New York, Fourth Department
Sep 19, 1975
49 A.D.2d 803 (N.Y. App. Div. 1975)
Case details for

Rawson v. Austin

Case Details

Full title:JUDITH RAWSON, Appellant, v. GLENN W. AUSTIN et al., Respondents

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

Date published: Sep 19, 1975

Citations

49 A.D.2d 803 (N.Y. App. Div. 1975)

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