Gepp v. International Harvester Co.

Full title: FRANCIS GEPP et al., Plaintiffs, v. INTERNATIONAL HARVESTER COMPANY et…

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

Date published: Oct 13, 1992

186 A.D.2d 418 (N.Y. App. Div. 1992)

588 N.Y.S.2d 288

Opinion

October 13, 1992

Appeal from the Supreme Court, Bronx County (Anita Florio, J.).

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 A.D.2d 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.