Evidence · MBE-tested
FRE International, Appellant, v. Joel T. Fishman et al., Respondents, et al., Defendants
199 A.D.2d 64604 N.Y.S.2d 948·New York Supreme Court, Appellate Division·1993·NY
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Opinion
FRE International, Appellant, v Joel T. Fishman et al., Respondents, et al., Defendants.
[604 NYS2d 948]
[MAJORITY]
Order, Supreme Court, New York County (Helen Freedman, J.), entered July 7, 1993, which granted defendants-respondents’ motion to vacate a default judgment, and denied plaintiff’s cross-motion, inter alia, to compel defendants-respondents to furnish plaintiff with a promissory note for the balance allegedly due plaintiff with interest, unanimously affirmed, with costs.
Defendants’ nonreceipt of plaintiff’s complaint constitutes a reasonable excuse for their failure to answer, and we find that they also have a meritorious defense. Plaintiff’s application for an order directing defendants to furnish a note for the balance was properly denied, since no such relief had been requested in either of plaintiff’s pleadings, and plaintiff’s fraud claim, raised for the first time in its motion, is contested. Concur— Murphy, P. J., Rosenberger, Ross and Nardelli, JJ.