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Gepp v. International Harvester Co.

186 A.D.2d 418 Court N.Y. App. Div. Decision date 1992-10-13 English

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p. 418
Francis Gepp et al., Plaintiffs, v International Harvester Company et al., Defendants and Third-Party Plaintiffs-Appellants. Cooper Jarrett, Inc., Third-Party Defendant-Respondent. (And a Second Third-Party Action.)

— Order, Supreme Court, Bronx County (Anita Florio, J.), entered April 22, 1992, which granted third-party defendant’s motion to vacate its default, unanimously affirmed, without costs.

p. 419
It was within the discretion of the court to vacate the default of the third-party defendant (CPLR 5015 [a] [1]). In the circumstances presented, the bankruptcy-dissolution of the defaulting party, the default was excusable. This is analogous to law office failure (Bayer v Domino Media, 147 AD2d 413 ). Further, the court properly found a meritorious defense in that there does not appear to be a basis for full indemnification as awarded by the default judgment, and a lack of prejudice to the third-party plaintiffs as the main action has not yet been tried. Concur — Ellerin, J. P., Wallach, Ross, Kassal and Rubin, JJ.