(DOWNLOAD) "Elizabeth Bouxsein Et Al. v. Bernard Bialo" by Supreme Court of New York # eBook PDF Kindle ePub Free

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eBook details

• Title: Elizabeth Bouxsein Et Al. v. Bernard Bialo
• Author : Supreme Court of New York
• Release Date : January 02, 1970
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 63 KB

Description

Defendant's time to answer the complaint and to file the bond is extended until 10 days after service of the order hereon
with notice of entry. A motion to open a default is addressed to the discretion of the court. To succeed the movant must first
establish that the entry of judgment or of an order establishing the default occurred as a result of excusable default (CPLR
5015, subd. [a], par. 1; Krebs v. Raborg, 30 A.D.2d 520). In the case at bar, defendant did not answer the complaint because
of the failure of his attorney to serve the paper and thereby protect the interests of his client. Such default by defendant
was not deliberate and was therefore excusable. In order to open the default, defendant must also establish the existence
of a meritorious defense to plaintiffs' claim (Hurley v. Reoux, 29 A.D.2d 789). Defendant alleges that one meritorious defense
to this action is that he served process on Albert J. Tiberi in the action entitled Bouxsein v. Tiberi. His other allegation
of a meritorious defense is that Louis Bouxsein, one of the plaintiffs in both actions, was guilty of contributory negligence.
In our opinion, defendant has alleged and shown by affidavit a prima facie meritorious defense sufficient to entitle him to
a trial of the issues. Disposition Order reversed, with $10 costs and disbursements, and defendant's motion granted, on condition that he file with
the clerk of the trial court a bond in the sum of $250 for costs.

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