From Casetext: Smarter Legal Research

Vogel v. Asgrow Mandeville Company

Court of Appeals of the State of New York
Nov 23, 1981
55 N.Y.2d 675 (N.Y. 1981)

Opinion

Argued October 16, 1981

Decided November 23, 1981

Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, JOHN H. PENNOCK, J.

Dennis A. First for appellant.

James J. Grifferty for respondent.



Order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division ( 74 A.D.2d 940), and question certified answered in the negative. It is noted that we are not here concerned with possible differences between CPLR 317 and 5015, the moving papers on this motion being insufficient to establish a meritorious defense.

Concur: Chief Judge COOKE and Judges JASEN, JONES and WACHTLER. Judge MEYER dissents and votes to reverse in an opinion in which Judges GABRIELLI and FUCHSBERG concur.


I vote to reverse. Plaintiff's attorney's affidavit concedes that defendant had a "company policy [which] was that an employee who was offered a job by the buyer [of defendant company] * * * would not be entitled to severance pay." By way of avoidance, however, he argues that "this policy was not uniformly administered."

That admission by plaintiff's attorney establishes the company policy upon which defendant relies to show a meritorious defense. That being so, it is immaterial that the affidavit submitted by defendant is by an attorney-employee of defendant's parent corporation. Because that affidavit is alleged to be on personal knowledge and is by an employee, I would hold it sufficient notwithstanding the employee is also attorney for the parent. In view of plaintiff's attorney's admission, however, it is not necessary to reach that point.

Order affirmed, etc.


Summaries of

Vogel v. Asgrow Mandeville Company

Court of Appeals of the State of New York
Nov 23, 1981
55 N.Y.2d 675 (N.Y. 1981)
Case details for

Vogel v. Asgrow Mandeville Company

Case Details

Full title:MICHAEL E. VOGEL, Respondent, v. ASGROW MANDEVILLE COMPANY, INC., Appellant

Court:Court of Appeals of the State of New York

Date published: Nov 23, 1981

Citations

55 N.Y.2d 675 (N.Y. 1981)
446 N.Y.S.2d 944
431 N.E.2d 305

Citing Cases

Cristo Bros., Inc. v. M. Cristo, Inc.

Special Term denied the motion and this appeal ensued. Corporations are obligated to keep a current address…

Howlan v. Rosol

Although plaintiff focuses on defendants' 10-month delay in moving to vacate the default judgment, CPLR 5015…