Opinion
2011-05-10
Michael STEWART, appellant, v. RAYMOND CORP., et al., respondents.
Sweetbaum & Sweetbaum, Lake Success, N.Y. (Marshall D. Sweetbaum of counsel), for appellant. Wilson Elser Moskowitz Edelman & Dicker, LLP, New York, N.Y. (Patrick J. Lawless, Phillip A. Tumbarello, Richard E. Lerner, and Charles DeMartino of counsel), for respondents.
Sweetbaum & Sweetbaum, Lake Success, N.Y. (Marshall D. Sweetbaum of counsel), for appellant. Wilson Elser Moskowitz Edelman & Dicker, LLP, New York, N.Y. (Patrick J. Lawless, Phillip A. Tumbarello, Richard E. Lerner, and Charles DeMartino of counsel), for respondents.
WILLIAM F. MASTRO, J.P. ANITA R. FLORIO JOHN M. LEVENTHAL ARIEL E. BELEN JEFFREY A. COHEN, JJ.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Spodek, J.), dated May 26, 2009, which denied his motion for leave to enter judgment against the defendants on the ground that they failed to appear or answer the complaint, and granted the application of the defendants Raymond Corporation, Abel Womack, Inc., and Womack Material Handling Systems, Inc., to compel him to accept their late answers.
ORDERED that the order is affirmed, with costs.
The Supreme Court properly denied the plaintiff's motion for leave to enter a default judgment against the defendants, which was made on the ground that the defendants failed to appear or answer the complaint. After the action was commenced in August 2008, but before their time to answer expired, the defendants filed a notice to remove the action to federaldistrict court. By this act, the defendants appeared in the action and, thus, could not have been deemed in default ( see City of Newburgh v. 96 Broadway LLC, 72 A.D.3d 632, 633, 897 N.Y.S.2d 720;Carlin v. Carlin, 52 A.D.3d 559, 561, 861 N.Y.S.2d 74;Quinn v. Booth Mem. Hosp., 239 A.D.2d 266, 657 N.Y.S.2d 680;see also Benifits By Design Corp. v. Contractor Mgt. Servs., LLC, 75 A.D.3d 826, 828, 905 N.Y.S.2d 340;Matter of Sessa v. Board of Assessors of Town of N. Elba, 46 A.D.3d 1163, 1164, 847 N.Y.S.2d 765). Accordingly, the Supreme Court properly denied the plaintiff's motion for leave to enter a default judgment against the defendants and properly granted the application of the defendants Raymond Corporation, Abel Womack, Inc., and Womack Material Handling Systems, Inc., to compel the plaintiff to accept their late answers.