Sweetland v. Malone ( 1996 )

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Shaw, J.), dated October 4, 1994, which denied his motion pursuant to CPLR 3215 for leave to enter a default judgment and pursuant to CPLR 3212 for summary judgment.

Ordered that the order is affirmed, with costs.

The Supreme Court did not improvidently exercise its discretion in denying the plaintiff leave to enter a default judgment. The defendant had vigorously defended a prior identical action, which the plaintiff believed had abated by the then-applicable provisions of CPLR 306-a. There is no evidence in the record that defense counsel was made aware of any abatement of the prior action or the commencement of this action. In addition, there is no evidence that the defendant intended to abandon his defense to the plaintiff’s allegations, and the plaintiff has not demonstrated any prejudice by the defendant’s technical default. We further agree with the Supreme Court that summary judgment is premature as an examination before trial of the plaintiff has not yet occurred. Thompson, J. P., Sullivan, Krausman and Florio, JJ., concur.