From Casetext: Smarter Legal Research

Cotter v. Consolidated Edison Co. of New York

Appellate Division of the Supreme Court of New York, First Department
Feb 28, 1984
99 A.D.2d 738 (N.Y. App. Div. 1984)

Opinion

February 28, 1984


Order, Supreme Court, New York County (Harold Bell, J.), entered August 18, 1982, denying the motion by appellants Consolidated Edison and Dorrer to vacate the default judgment entered April 1, 1982, reversed, on the law, the facts and in the exercise of discretion, to grant the motion to vacate the default judgment on condition that Consolidated Edison pay to plaintiff's attorneys the sum of $2,500 within 20 days after service of a copy of the order to be entered on the appeal and defendants serve their answer within said period, without costs or disbursements. Upon failure to comply with the foregoing, the order is affirmed, with costs and disbursements to plaintiff. The excuse offered by appellants for their default in answering is somewhat dubious, particularly considering that there had been no service upon defendant Kinkel when appellants' answer was interposed. Nevertheless, there was a relatively short delay, no resultant prejudice and, in view of the existence of a possible meritorious defense, at least with respect to the second cause of action for wrongful discharge (see Murphy v American Home Prods. Corp., 58 N.Y.2d 293), we are not persuaded that the circumstances warrant the drastic remedy of entry of a default judgment. Accordingly, we excuse the default on the condition provided and upon the prompt service by appellants of their responsive pleading (CPLR 2005, 3012, subd [d]). In our view, the case should proceed to a disposition on the merits.

Concur — Asch, J.P., Silverman, Bloom, Fein and Kassal, JJ.


Summaries of

Cotter v. Consolidated Edison Co. of New York

Appellate Division of the Supreme Court of New York, First Department
Feb 28, 1984
99 A.D.2d 738 (N.Y. App. Div. 1984)
Case details for

Cotter v. Consolidated Edison Co. of New York

Case Details

Full title:MICHAEL COTTER, Respondent, v. CONSOLIDATED EDISON COMPANY OF NEW YORK…

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

Date published: Feb 28, 1984

Citations

99 A.D.2d 738 (N.Y. App. Div. 1984)

Citing Cases

Shopsin v. Siben Siben

Ordered that the order is affirmed, with costs. There was only a short delay in serving the complaint and no…

Scott v. Allstate Insurance Company

Based upon our foregoing analysis, which indicates a short nonprejudicial delay in serving an answer and an…