From Casetext: Smarter Legal Research

Polans v. Swedish Crown Casual Furniture Corp.

Appellate Division of the Supreme Court of New York, Second Department
Apr 9, 1979
69 A.D.2d 833 (N.Y. App. Div. 1979)

Opinion

April 9, 1979


In an action to recover damages for conversion, in which a default judgment was entered in favor of plaintiff upon the granting of his unopposed motion for summary judgment, plaintiff appeals from so much of an order of the Supreme Court, Nassau County, dated May 12, 1978, as granted the branch of the motion of defendants Swedish Crown Furniture Corp., Swedish Crown Corp. and Paul Crowley which sought to vacate the default judgment. Order reversed insofar as appealed from, on the law, with $50 costs and disbursements, the said branch of the motion is denied and the default judgment in favor of the plaintiff is reinstated. The respondents are not entitled to a vacatur of the judgment because they have failed to excuse their default. The application to vacate the default was brought some 28 months after entry of the default judgment and two years after the individual defendant, Paul Crowley, was deposed in the course of enforcement proceedings. The proffered excuse constitutes little more than a claim of law office failure. Although this might be sufficient to excuse a delay of several months, it is entirely insufficient to excuse the inordinate delay of 28 months. The claim of lack of representation has no bearing on why the respondents failed to take any action to vacate the judgment for almost two years after Crowley was deposed for purposes of enforcing the judgment. In addition, we note that the respondents have not persuasively established a meritorious defense to the action. The respondents have alleged that the plaintiff defaulted on a loan and that his automobile was properly taken pursuant to a written security agreement. However, the security agreement computes interest at the rate of 1% per month on the remaining balance. This exceeds the permitted rates and, therefore, the security agreement is void and unenforceable (see General Obligations Law, §§ 5-501, 5-511; 3 NYCRR 4.1). The respondents' contention that the agreement should be construed as a purchase-money mortgage (cf. Uniform Commercial Code, § 9-107) is untenable in the circumstances of this case. Damiani, J.P., Lazer, Rabin and Margett, JJ., concur.


Summaries of

Polans v. Swedish Crown Casual Furniture Corp.

Appellate Division of the Supreme Court of New York, Second Department
Apr 9, 1979
69 A.D.2d 833 (N.Y. App. Div. 1979)
Case details for

Polans v. Swedish Crown Casual Furniture Corp.

Case Details

Full title:HARRY POLANS, Appellant, v. SWEDISH CROWN CASUAL FURNITURE CORP. et al.…

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

Date published: Apr 9, 1979

Citations

69 A.D.2d 833 (N.Y. App. Div. 1979)

Citing Cases

Mazzio v. Jennings

the plaintiff nor her counsel appeared at a court conference ( see 22 NYCRR 202.27[b] ). To be relieved of…

Mazzio v. Jennings

The action was dismissed on October 1, 2009, when neither the plaintiff nor her counsel appeared at a court…