From Casetext: Smarter Legal Research

Hinderer v. Erbesh

Appellate Division of the Supreme Court of New York, Second Department
Jun 30, 1997
240 A.D.2d 707 (N.Y. App. Div. 1997)

Opinion

June 30, 1997

Appeal from the Supreme Court, Dutchess County (Bernhard, J.).


Ordered that the appeal from the order entered June 28, 1996, is dismissed, as that order was vacated by the order entered September 5, 1996; and it is further,

Ordered that the appeal from the order entered September 5, 1996, is dismissed, since an order which defers determination of a motion is not appealable as of right ( see, Oberting v Long Is. Jewish-Hillside Med. Ctr., 100 A.D.2d 840); and it is further,

Ordered that the order dated September 18, 1996, is reversed, on the law, the plaintiff's motion is denied, the defendant's cross motion is granted, and the complaint is dismissed; and it is further,

Ordered that the defendant is awarded one bill of costs.

It is well settled that a party attempting to vacate a default must establish both a reasonable excuse for the default and a meritorious defense ( see, Putney v. Pearlman, 203 A.D.2d 333). In this case, the defendant asserted that under the circumstances, the plaintiff's exclusive remedy was Workers' Compensation and that the default in answering was caused by a misunderstanding as to whether his carrier would provide a defense on his behalf. The defendant thus satisfied the above standard and vacatur was warranted.

In addition, the Supreme Court should have granted the defendant's cross motion to dismiss the complaint. A plaintiff injured during the course of his or her employment cannot maintain an action against the owner of the property where the accident occurred when the owner is also an officer of the corporation which employed the plaintiff ( see, Heritage v. Van Patten, 90 A.D.2d 936, affd 59 N.Y.2d 1017; McFarlane v. Chera, 211 A.D.2d 764).

Ritter, J.P., Sullivan, Altman and McGinity, JJ., concur.


Summaries of

Hinderer v. Erbesh

Appellate Division of the Supreme Court of New York, Second Department
Jun 30, 1997
240 A.D.2d 707 (N.Y. App. Div. 1997)
Case details for

Hinderer v. Erbesh

Case Details

Full title:THOMAS HINDERER, Respondent, v. MORRIS ERBESH, Appellant

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

Date published: Jun 30, 1997

Citations

240 A.D.2d 707 (N.Y. App. Div. 1997)
660 N.Y.S.2d 25

Citing Cases

Siorek v. Zablocki

ORDERED that the order is affirmed, with costs. The defendant established both a reasonable excuse for his…

Beth M. v. Joseph M.

The Husband shall continue to maintain all existing medical, hospitalization and dental insurance for the…