| Stewart v Raymond Corp. |
| 2011 NY Slip Op 04036 [84 AD3d 932] |
| May 10, 2011 |
| Appellate Division, Second Department |
| Michael Stewart, Appellant, v Raymond Corp. et al.,Respondents. |
—[*1] Wilson Elser Moskowitz Edelman & Dicker, LLP, New York, N.Y. (Patrick J. Lawless,Phillip A. Tumbarello, Richard E. Lerner, and Charles DeMartino of counsel), forrespondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Kings County (Spodek, J.), dated May 26, 2009, which denied his motion forleave to enter judgment against the defendants on the ground that they failed to appear or answerthe complaint, and granted the application of the defendants Raymond Corporation, AbelWomack, Inc., and Womack Material Handling Systems, Inc., to compel him to accept their lateanswers.
Ordered that the order is affirmed, with costs.
The Supreme Court properly denied the plaintiff's motion for leave to enter a defaultjudgment against the defendants, which was made on the ground that the defendants failed toappear or answer the complaint. After the action was commenced in August 2008, but beforetheir time to answer expired, the defendants filed a notice to remove the action to federal districtcourt. By this act, the defendants appeared in the action and, thus, could not have been deemed indefault (see City of Newburgh v 96Broadway LLC, 72 AD3d 632, 633 [2010]; Carlin v Carlin, 52 AD3d 559, 561 [2008]; Quinn v BoothMem. Hosp., 239 AD2d 266 [1997]; see also Benifits by Design Corp. v Contractor Mgt. Servs., LLC, 75AD3d 826, 828 [2010]; Matter ofSessa v Board of Assessors of Town of N. Elba, 46 AD3d 1163, 1164 [2007]).Accordingly, the Supreme Court properly denied the plaintiff's motion for leave to enter a defaultjudgment against the defendants and properly granted the application of the defendants RaymondCorporation, Abel Womack, Inc., and Womack Material Handling Systems, Inc., to compel theplaintiff to accept their late answers. Mastro, J.P., Florio, Leventhal, Belen and Cohen, JJ.,concur.