Jeffers v. Stein ( 2012 )

The Supreme Court properly denied that branch of the plaintiffs motion which was for leave to enter a default judgment against the defendants Bruce L. Stein, as temporary administrator of the estate of Alice Parker Gordon, also known as Ales Parker Gordon, and Cecil D. Worrell, as administrator of the estate of James Gordon (hereinafter together the Gordon defendants), and properly granted that branch of the Gordon defendants’ cross motion which was for leave to serve a late answer, since the Gordon defendants did not default in appearing in this action. On the day this action was commenced, the plaintiff brought an order to show cause in the Supreme Court seeking a preliminary injunction. The Gordon defendants’ attorney appeared in the Supreme Court that day to oppose the plaintiff’s order to show cause, and thereafter requested an adjournment of the motion, filed papers in opposition to the motion, and appeared for oral argument on the motion. By these acts, the Gordon defendants made an informal appearance in this action, and are therefore not in default (see City of Newburgh v 96 Broadway LLC, 72 AD3d 632, 633 [2010]; Carlin v Carlin, 52 AD3d 559, 561 [2008]; Parrotta v Wolgin, 245 AD2d 872, 873 [1997]; Taylor v Taylor, 64 AD2d 592 [1978]; Cohen v Ryan, 34 AD2d 789, 790 [1970]).

The plaintiffs remaining contentions have been rendered academic in light of our determination. Eng, RJ., Skelos, Chambers and Sgroi, JJ., concur.