Pemberton v T & J Motors Inc.

[*1] Pemberton v T & J Motors Inc. 2005 NY Slip Op 51581(U) [9 Misc 3d 130(A)] Decided on September 30, 2005 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 30, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: September 30, 2005 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS PRESENT : RUDOLPH, P.J., ANGIOLILLO and TANENBAUM, JJ.
2004-1454 S C

Lynn Pemberton, Respondent,

against

T & J Motors Inc., Appellant.

Appeal from an order of the District Court of Suffolk County, Third District (C. Steven Hackeling, J.), entered August 17, 2004. The order, insofar as appealed from, conditioned the vacatur of the default judgment upon defendant's payment of the sum of $150 to plaintiff.

Order, insofar as appealed from, unanimously affirmed without costs.

In this small claims action, defendant moved to vacate the judgment entered on default. In its moving papers, defendant's president stated that the summons and complaint were misplaced and, as a result, defendant failed to appear in court. The lower court granted defendant's motion on condition that defendant pay plaintiff the [*2]
sum of $150. We are of the opinion that the lower court's order granting defendant's motion upon the aforementioned condition was a proper exercise of the court's discretion.
Decision Date: September 30, 2005