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Berner v. MCV Products, Inc.

Appellate Division of the Supreme Court of New York, Fourth Department
Mar 8, 1991
171 A.D.2d 1041 (N.Y. App. Div. 1991)

Opinion

March 8, 1991

Appeal from the Supreme Court, Niagara County, Mintz, J.

Present — Doerr, J.P., Green, Pine, Lawton and Davis, JJ.


Order unanimously reversed in the exercise of discretion without costs, motion granted and complaint reinstated. Memorandum: The court erred in granting reargument of defendant's motion to dismiss for failure to prosecute and in adhering to its prior order granting that motion. Plaintiff's alternative motion to vacate the prior order based on excusable default (CPLR 5015) was the procedurally proper vehicle, rather than a motion to reargue, and we grant that motion in the exercise of our discretion. We find that plaintiff met his burden of showing a sufficient excuse for the default in opposing the motion to dismiss for failure to prosecute, a justifiable excuse for the default in filing a note of issue pursuant to defendant's 90-day demand, and a meritorious cause of action (CPLR 3216 [e]; 5015 [a] [1]; see, e.g., Miniotis v Dugan Bros., 44 A.D.2d 708; see also, Siragusa v Teal's Express, 96 A.D.2d 749).


Summaries of

Berner v. MCV Products, Inc.

Appellate Division of the Supreme Court of New York, Fourth Department
Mar 8, 1991
171 A.D.2d 1041 (N.Y. App. Div. 1991)
Case details for

Berner v. MCV Products, Inc.

Case Details

Full title:CARL R. BERNER, Appellant, v. MCV PRODUCTS, INC., Also Known as AMCV…

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

Date published: Mar 8, 1991

Citations

171 A.D.2d 1041 (N.Y. App. Div. 1991)