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Warshaw v. Carlis Realty Corp.

Appellate Division of the Supreme Court of New York, Second Department
Jun 24, 1985
111 A.D.2d 919 (N.Y. App. Div. 1985)

Opinion

June 24, 1985

Appeal from the Supreme Court, Nassau County (Christ, J.).


Appeal from the order dated May 16, 1984, dismissed, without costs or disbursements. That order was superseded by the order dated June 25, 1984, made upon reargument.

Order dated June 25, 1984, reversed insofar as appealed from, without costs or disbursements, and upon reargument, so much of the order dated May 16, 1984, as granted the plaintiffs' motion for a severance against the Village and denied those branches of the Village's cross motion which were to vacate its default in answering and to compel plaintiffs to accept its answer vacated, plaintiffs' motion denied, and those branches of appellant's cross motion granted on condition that appellant's counsel personally pay plaintiffs the sum of $500. The time to pay the $500 is extended until 30 days after service upon appellant's counsel of a copy of the order to be made hereon, with notice of entry. In the event the condition is not complied with, then order dated June 25, 1984, affirmed, with costs. Upon compliance with the condition, appellant's proposed answer, which was annexed to its papers in opposition to plaintiffs' motion and in support of its cross motion, is deemed timely served.

In view of (1) the minimal period of delay in serving the answer, (2) the lack of prejudice to plaintiffs, and (3) the submission by the appellant of affidavits demonstrating the existence of meritorious defenses to the action, Special Term abused its discretion in granting plaintiffs' motion for leave to enter a default judgment against appellant and denying the appellant's cross motion to vacate its default in answering the complaint (CPLR 2005; Wagenknecht v. Government Employees Ins. Co., 97 A.D.2d 407; cf. Junior v. City of New York, 85 A.D.2d 683).

Nevertheless, we have imposed a sanction upon appellant's attorneys due to their failure to seek an extension of the time to answer by written stipulation or court order within 20 days after personal service of the summons and complaint ( Wagenknecht v. Government Employees Ins. Co., supra). Mangano, J.P., Bracken, Rubin and Kunzeman, JJ., concur.


Summaries of

Warshaw v. Carlis Realty Corp.

Appellate Division of the Supreme Court of New York, Second Department
Jun 24, 1985
111 A.D.2d 919 (N.Y. App. Div. 1985)
Case details for

Warshaw v. Carlis Realty Corp.

Case Details

Full title:JOEL WARSHAW et al., Respondents, v. CARLIS REALTY CORP. et al.…

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

Date published: Jun 24, 1985

Citations

111 A.D.2d 919 (N.Y. App. Div. 1985)

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