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Corsaro v. Luster

Supreme Court, Appellate Term, First Department
Nov 23, 1960
28 Misc. 2d 583 (N.Y. App. Term 1960)

Opinion

November 23, 1960

Appeal from the City Court of the City of New York, County of New York, BEATRICE K. CASS, J.

Robert I. Mandel for appellants.

Leon Samuels, Harry Rodwin and Richard Rodwin for respondent.

Mendes Mount ( John J. Cullen of counsel), for Orion Insurance Co., Ltd., appearing specially.


Defendant after service of the summons and complaint failed to appear or answer and an inquest was taken. On motion to open the default it appears that defendant claims to have turned the process over to her insurance carrier and believed it was defending the action. Without passing on the merits of this claim as an excusable neglect it cannot be availing here. Prior to moving for judgment and taking the inquest, plaintiff notified defendant by registered mail on two occasions that no appearance had been made and giving defendant an opportunity to appear. Receipt of these letters is admitted and the benefit of legal advice in connection with them. In view of this something more than a blind reliance on the carrier is called for. The failure to take any step except to forward the letters to the insurer becomes inexcusable. Defendant was now advised that the carrier had not appeared and she neither appeared herself nor sought or received any assurance from the carrier that it would appear. Reliance under these circumstances is not excusable.

The order opening defendant's default should be reversed, with $10 costs and disbursements, and motion denied.

Concur — HECHT, J.P., STEUER and TILZER, JJ.

Order reversed, etc.


Summaries of

Corsaro v. Luster

Supreme Court, Appellate Term, First Department
Nov 23, 1960
28 Misc. 2d 583 (N.Y. App. Term 1960)
Case details for

Corsaro v. Luster

Case Details

Full title:BARBARA CORSARO, an Infant, by NETTIE CORSARO, Her Guardian ad Litem, et…

Court:Supreme Court, Appellate Term, First Department

Date published: Nov 23, 1960

Citations

28 Misc. 2d 583 (N.Y. App. Term 1960)
208 N.Y.S.2d 407

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