Opinion
2012-10-24
Oswald JEFFERS, appellant, v. Bruce L. STEIN, etc., et al., respondents, et al., defendant.
O. Benjamin Okeke, Brooklyn, N.Y., for appellant.
RANDALL T. ENG, P.J., PETER B. SKELOS, CHERYL E. CHAMBERS, and SANDRA L. SGROI, JJ.
In an action, inter alia, for a judgment declaring that the plaintiff is the owner of certain real property, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Lewis, J.), dated October 14, 2011, as denied that branch of his motion which was for leave to enter a default judgment against the defendants Bruce L. Stein, as temporary administrator of the estate of Alice Parker Gordon, also known as Ales Parker Gordon, and Cecil D. Worrell, as administrator of the estate of James Gordon, and granted that branch of the cross motion of the defendants Bruce L. Stein, as temporary administrator of the estate of Alice Parker Gordon, also known as Ales Parker Gordon, and Cecil D. Worrell, as administrator of the estate of James Gordon, which was for leave to serve and file a late answer.
ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.
The Supreme Court properly denied that branch of the plaintiff's motion which was for leave to enter a default judgment against the defendants Bruce L. Stein, as temporary administrator of the estate of Alice Parker Gordon, also known as Ales Parker Gordon, and Cecil D. Worrell, as administrator of the estate of James Gordon (hereinafter together the Gordon defendants), and properly granted that branch of the Gordon defendants' cross motion which was for leave to serve a late answer, since the Gordon defendants did not default in appearing in this action. On the day this action was commenced, the plaintiff brought an order to show cause in the Supreme Court seeking a preliminary injunction. The Gordon defendants' attorney appeared in the Supreme Court that day to oppose the plaintiff's order to show cause, and thereafter requested an adjournment of the motion, filed papers in opposition to the motion, and appeared for oral argument on the motion. By these acts, the Gordon defendants made an informal appearance in this action, and are therefore not in default ( see City of Newburgh v. 96 Broadway LLC, 72 A.D.3d 632, 633, 897 N.Y.S.2d 720;Carlin v. Carlin, 52 A.D.3d 559, 561, 861 N.Y.S.2d 74;Parrotta v. Wolgin, 245 A.D.2d 872, 873, 666 N.Y.S.2d 341;Taylor v. Taylor, 64 A.D.2d 592, 407 N.Y.S.2d 172;Cohen v. Ryan, 34 A.D.2d 789, 790, 311 N.Y.S.2d 644).
The plaintiff's remaining contentions have been rendered academic in light of our determination.