Defendant Relieved of Lawsuit Default Even Though it Did Not Make Formal Motion for Relief

Court: Appellate Division, Second Department

Case: Fried v. Jacob Holding, Inc.

Date: August 7, 2013

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn and Queens; Queens injury attorney)

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RELATED POSTS:

INSURED DIDN'T GIVE NOTICE OF LAWSUIT; ACCIDENT VICTIM'S DIRECT CASE AGAINST INSURANCE CARRIER DISMISSED ON DEFENSE SUMMARY JUDGMENT

ACCIDENT VICTIM'S DEFAULT FORGIVEN, SHE DEFEATS DEFENSE MOTION SEEKING SUMMARY JUDGMENT ON NO-FAULT "SERIOUS INJURY" THRESHOLD

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Facts: The accident case addresses a technical aspect of legal procedure. Plaintiff is a child injured in an accident. Defendant was sued but defaulted in answering the complaint of plaintiff's lawsuit, so plaintiff has made a motion to ask the Court to enter judgment by default against the defendant. This would hand the plaintiff an automatic win.

The defendant has asked the Court to relieve its default and permit it to defend the case against it -- the wrinkle is that defendant has not made a formal application to the court by way of a motion.

The lower Court granted the defendant's request. It found that the defendant had offered a fair defense and a reasonable explanation for its default; the Court also observed that we have a strong policy favoring deciding lawsuits on their merits, rather than by default. It overlooked the technical defect in defendant's papers to grant defendant another chance.

The issue here: Was it proper for the lower court to relieve the defendant of its default and force the plaintiff's injury case to go forward on the merits, where in its papers defendant asked to be permitted to defend the case, but did not ask in precisely the correct way?

Held: The appeals Court affirms (upholds) the lower court=s ruling relieving defendant of its default in appearing in and defending against plaintiff's accident lawsuit. However, the Court points out that it is risky for a party to ask for affirmative relief in papers opposing a motion without a formal motion of its own.

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