Thomas v. Callahan

Dec 22, 1995
Versions:222 A.D.2d 1070
635 N.Y.S.2d 883
1995 N.Y. App. Div. LEXIS 14135

—Order unanimously reversed on the law without costs, motion granted and default judgment vacated in accordance with the following Memorandum: Under the circumstances of this case, it was an abuse of discretion for Supreme Court to deny the motion of DeJac and Babcock Bar and Grill (defendants) seeking vacatur of the default judgment entered against them. DeJac, the sole proprietor and owner of Babcock Bar and Grill, contacted plaintiff’s counsel by letter 13 days following service of the summons and complaint. Although that letter did not constitute an answer, it is clear that it was an attempt to participate in the action pro se (see, Townsend v Torres, 182 AD2d 1140; see also, Meyer v A&B Am., 160 AD2d 688, 689; General Elec. Credit Corp. v Zemrus, 115 AD2d 953). DeJac’s affidavit and defendants’ proposed answer allege a meritorious defense to this personal injury action. Thus, defendants’ motion is granted upon condition that plaintiff’s counsel retain funds currently held by counsel from execution on the judgment in an interest-bearing escrow account until final judgment is entered in this matter (see, CPLR 5015 [a]) and that defendants serve an answer within 20 days after service of a copy of the order of this Court with notice of entry. (Appeal from Order of Supreme Court, Erie County, Notaro, J. — Vacate Default Judgment.) Present — Pine, J. P., Lawton, Wesley, Callahan and Davis, JJ.