Citation Numbers: 50 A.D.2d 997
Judges: Kane
Filed Date: 12/18/1975
Status: Precedential
Modified Date: 1/12/2022
— Appeal from an order of the Supreme Court at Special Term, entered March 19, 1975 in Delaware County, which granted defendant’s motion to vacate a default judgment taken against him. On April 16, 1973 plaintiff instituted this action by service of a summons, and on May 17 a complaint was served alleging a number of contract and tort causes of action, arising out of $20,000 allegedly given to defendant in 1963. After motions by defendant to dismiss plaintiff’s first complaint proved unsuccessful, plaintiff served an amended complaint on August 1, 1973. Defendant attempted to answer on September 17, 1973, but plaintiff’s counsel rejected and returned this pleading, which was 27 days late, as untimely. A default judgment was entered on December 3, 1973. The within motion to vacate the default judgment was made within one year of its entry pursuant to CPLR 5015 (subd [a], par 1). Special Term granted the motion, finding an excusable default and meritorious defenses including the Statute of Frauds and the Statute of Limitations. On review of the record, we find no abuse of discretion. Order affirmed, without costs. Greenblott, J. P., Sweeney, Larkin and Reynolds, JJ., concur; Kane, J., dissents and votes to reverse in the