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Salemo v. Geller

Appellate Division of the Supreme Court of New York, First Department
Apr 1, 1999
260 A.D.2d 153 (N.Y. App. Div. 1999)

Opinion

April 1, 1999

Appeal from the Supreme Court, New York County (Harold Tompkins, J.).


Under the circumstances herein, defendants submitted a reasonable excuse for their default. Thus, counsel asserted in his, affirmation in support of the motion that his secretary was able to ascertain that the matter was not on the calendar the day the parties were scheduled to appear. Further, plaintiffs' counsel does not dispute the fact that the case did not appear on the court's printed calendar due to computer error. Further, defense counsel was actually engaged in a matter in the Second Department, thereby contributing to his failure to appear timely for the compliance conference.

In addition, defendants have presented a meritorious defense to this action. Accordingly, since defendants have satisfied the two-prong burden of showing a meritorious defense and a reasonable excuse for the default ( cf., Eisenstein v. Rose, 135 A.D.2d 369, 370), the IAS Court improvidently exercised its discretion in refusing to vacate their default.

Concur — Ellerin, P. J., Nardelli, Tom and Andrias, JJ.


Summaries of

Salemo v. Geller

Appellate Division of the Supreme Court of New York, First Department
Apr 1, 1999
260 A.D.2d 153 (N.Y. App. Div. 1999)
Case details for

Salemo v. Geller

Case Details

Full title:FRANK A. SALEMO et al., Respondents, v. LEONARD GELLER et al., Appellants

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

Date published: Apr 1, 1999

Citations

260 A.D.2d 153 (N.Y. App. Div. 1999)
685 N.Y.S.2d 616

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