Fuller v Stallone

[*1] Fuller v Stallone 2004 NY Slip Op 50276(U) Decided on April 9, 2004 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 9, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT:PESCE, P.J., PATTERSON and GOLIA, JJ.
NO. 2003-148 K C

VIOLA FULLER, KELLI FULLER, Appellants,

against

MICHAEL STALLONE, ALLSTATE INSURANCE COMPANY, Respondents.

Appeal by plaintiffs from an order of the Civil Court, Kings County

(K. Yellen, J.), entered on November 25, 2002, which granted defendant Michael Stallone's motion to vacate a default and dismissed the action against both defendants.

Order unanimously affirmed without costs.

Upon review of the record, we find that plaintiffs' prior motion for entry of a default did not provide adequate notice (CPLR 2214; 2103 [b] [2]) and, thus, the lower court's order granting defendant Stallone's motion to vacate the order setting the matter down for an inquest should not be disturbed. Moreover, defendant established a meritorious defense and a reasonable excuse to vacate the default. We further find that plaintiffs' claims of judicial misconduct and prejudice were not supported by the record before this court.
Decision Date: April 09, 2004