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Fiato v. Buscema

Appellate Division of the Supreme Court of New York, Third Department
Jul 3, 1986
122 A.D.2d 335 (N.Y. App. Div. 1986)

Opinion

July 3, 1986

Appeal from the County Court of Albany County (Turner, Jr., J.).


Plaintiff commenced this action in City Court, Small Claims Part, to recover $397.62 for landscape services performed for defendant. The latter failed to appear in court on the scheduled return date and plaintiff obtained a default judgment. In an effort to excuse his default, defendant told City Court that he had missed his court appearance because he believed the parties had settled the dispute for $300. When asked by the court why he did not fulfill the bargain by paying plaintiff that agreed amount, defendant asserted that he was "waiting for some kind of bill or something from [plaintiff]". Finding that reason insubstantial, the court denied defendant's motion. When that decision was affirmed by County Court, this appeal followed.

We affirm. The merit of defendant's excuse for defaulting rests entirely on the believability of his justification for not completing the settlement. Resolution of that issue is within the province of the hearing court to assess and adjudge (see, Tucker v Rogers, 95 A.D.2d 960, 961). On the exceedingly sparse record presented, we are unable to say that rejection of that excuse was an unreasonable exercise of judicial discretion.

Order affirmed, with costs. Mahoney, P.J., Main, Mikoll, Yesawich, Jr., and Levine, JJ., concur.


Summaries of

Fiato v. Buscema

Appellate Division of the Supreme Court of New York, Third Department
Jul 3, 1986
122 A.D.2d 335 (N.Y. App. Div. 1986)
Case details for

Fiato v. Buscema

Case Details

Full title:DANIEL J. FIATO, Doing Business as ACREAGE LANDSCAPE, Respondent, v…

Court:Appellate Division of the Supreme Court of New York, Third Department

Date published: Jul 3, 1986

Citations

122 A.D.2d 335 (N.Y. App. Div. 1986)

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