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Island Seafood v. Anchor Fish Distributors

Appellate Division of the Supreme Court of New York, Second Department
Feb 29, 2000
269 A.D.2d 426 (N.Y. App. Div. 2000)

Opinion

Argued December 10, 1999

February 29, 2000

In an action, inter alia, to recover damages based on goods sold and delivered, the plaintiff and its attorney appeal from so much of an order of the Supreme Court, Nassau County (Alpert, J.), dated January 25, 1999, as, upon renewal of a prior motion to vacate an ex parte order of the same court, dated August 3, 1998, which dismissed the complaint based on the failure of the attorneys for both sides to appear at a pretrial conference, imposed as a condition for granting the prior motion that the plaintiff's attorney pay to the defendant the sum of $1,000.

Russell K. Statman, New York, N.Y. (Justine Clare Moran of counsel), nonparty appellant pro se, and for appellant.

LAWRENCE J. BRACKEN, J.P., WILLIAM C. THOMPSON, THOMAS R. SULLIVAN, GABRIEL M. KRAUSMAN, JJ.


DECISION ORDER

ORDERED that the order is reversed insofar as appealed from, as a matter of discretion, with costs, and upon renewal, the plaintiff's motion to vacate the order dated August 3, 1998, is granted unconditionally, and that order is vacated.

The Supreme Court has the discretion to grant a motion to vacate a prior order granted on default upon such terms as may be just (see, CPLR 5015[a]; see, e.g.,Workman v. Amato, 231 A.D.2d 627 ). Here, the prior ex parte order dated August 3, 1998, dismissed the plaintiff's action after the attorneys for both sides defaulted in appearing at a conference. The record establishes that the attorney for the defendant was at least as responsible for that default as the attorney for the plaintiff. Therefore, it was an improvident exercise of discretion to impose, as a condition to the vacatur of the order dated August 3, 1998, a provision which punished the attorney for the plaintiff alone.


Summaries of

Island Seafood v. Anchor Fish Distributors

Appellate Division of the Supreme Court of New York, Second Department
Feb 29, 2000
269 A.D.2d 426 (N.Y. App. Div. 2000)
Case details for

Island Seafood v. Anchor Fish Distributors

Case Details

Full title:ISLAND SEAFOOD, INC., appellant, v. ANCHOR FISH DISTRIBUTORS, LTD.…

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

Date published: Feb 29, 2000

Citations

269 A.D.2d 426 (N.Y. App. Div. 2000)
703 N.Y.S.2d 216

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