Atl. Mut. Ins. v. Shaw, 222 A.D.2d 581 (N.Y. App. Div. 1995). · Go Syfert
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Atl. Mut. Ins. v. Shaw, 222 A.D.2d 581 (N.Y. App. Div. 1995). Cases Citing This Book View Copy Cite
30 citation events (23 in the last 25 years) across 3 distinct courts.
Strongest positive: Matter of Ronelli-Dutcher v. Dutcher (nyappdiv, 2019-10-17)
Treatment trajectory · 1996 → 2026 · click a year to view as-of
1996 2011 2026
Top citers, strongest first. 7 distinct citers. How cited ↗
discussed Cited as authority (rule) Matter of Ronelli-Dutcher v. Dutcher
N.Y. App. Div. · 2019 · confidence medium
Inasmuch as the purpose of this provision of law is "to prevent default judgments from being entered against military personnel without their knowledge" ( Matter of Roslyn B. v Alfred G. , 222 AD2d 581, 582 [1995]), and it is clear from the record that the father was aware of this proceeding and the date of the fact-finding hearing, this is not a situation for which Military Law § 303 applies.
discussed Cited as authority (rule) Energy Coop. of Am., Inc. v. Luigi's Family Bakery, Inc.
N.Y. App. Div. · 2019 · confidence medium
We also conclude that, because this was not a default judgment, the court erred in determining that plaintiff was required to submit affidavits of nonmilitary service ( see Matter of Roslyn B. v Alfred G ., 222 AD2d 581, 581 [2d Dept 1995]; Matter of Title Guar. & Trust Co. v Duffy , 267 App Div 444, 446 [1st Dept 1944]).
discussed Cited as authority (rule) Finn v. Church for Art of LivIng, Inc.
N.Y. App. Div. · 2011 · confidence medium
The Supreme Court properly determined that the purchaser waived any objection to personal service by appearing and actively participating in the action (see USF&G v Maggiore, 299 AD2d 341, 342 [2002]; Matter of Roslyn B. v Alfred G., 222 AD2d 581, 582 [1995]).
cited Cited as authority (rule) In re Tonezia D.
N.Y. App. Div. · 2008 · signal: cf. · confidence medium
Mary’s Hosp., 156 AD2d 436 [1989]; cf. Matter of Roslyn B. v Alfred G., 222 AD2d 581, 582 [1995]; Matter of Rosso v Rosso, 171 AD2d 797 [1991]).
discussed Cited as authority (rule) USF&G v. Maggiore
N.Y. App. Div. · 2002 · confidence medium
Courts, however, have also recognized that a “person who participates in the merits of an action appears informally and confers jurisdiction on the court” (Matter of Roslyn B. v Alfred G., 222 AD2d 581, 582 [citations omitted] [appellant conferred jurisdiction on Family Court when he submitted to a blood grouping test and asserted denials of his paternity through his attorney without raising jurisdictional objection]; see Alexander, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C320:4, at 284 [“A defendant whose participation in an action reaches a certain level of a…
cited Cited as authority (rule) Allstate Insurance v. Moshevev
N.Y. App. Div. · 2002 · confidence medium
Co. v Shaw, supra at 581).
discussed Cited "see" U.S. Bank N.A. v. Cadoo
N.Y. App. Div. · 2021 · signal: see · confidence high
Here, by opposing the plaintiff's motion to vacate the conditional order of dismissal which was, in effect, pursuant to CPLR 3215(c), the defendants did not demonstrate a "clear intent to participate" ( Taveras v City of New York , 108 AD3d 614, 617 ) in the litigation, nor did they participate in the lawsuit "on the merits," and therefore they did not formally or informally appear in the action ( id. at 617 ; see Matter of Roslyn B. v Alfred G. , 222 AD2d at 582 ).
Retrieving the full opinion text from the archive…
In the Matter of Atlantic Mutual Insurance Company
v.
Nejhla Shaw
Appellate Division of the Supreme Court of the State of New York.
Dec 18, 1995.
222 A.D.2d 581
1995 N.Y. App. Div. LEXIS 12905
Cited by 12 opinions  |  Published

—In a proceeding to stay arbitration of an uninsured motorist claim, the appeal is from an order of the Supreme Court, Nassau County (Kutner, J.), entered November 30, 1993, which denied the appellant’s motion to vacate a judgment of the same court, entered August 19, 1993, upon her default, permanently staying arbitration.

Ordered that the order is reversed, as a matter of discretion, with costs, the motion is granted, and the matter is remitted to the Supreme Court, Nassau County, for a hearing on the issue of whether or not there was physical contact between the vehicle insured by the petitioner and the alleged offending vehicle.

Physical contact is a condition precedent to an arbitration that is based on a so-called hit-and-run accident (see, Insurance Law § 5217; Matter of Smith [Great Am. Ins. Co.], 29 NY2d 116; Matter of Empire Mut. Ins. Co. [Zelin], 120 AD2d 365). When there is a genuine triable issue of fact with regard to whether the claimant’s vehicle actually came into contact with the offending vehicle, the appropriate procedure is to stay the arbitration pending a hearing on that issue (see, Matter of Empire Mut. Ins. Co. v Zelin, supra; Matter of Allstate Ins. Co. v Jacobs, 85 AD2d 542). The appellant’s affidavit creates an issue of fact with regard to physical contact which must be resolved at a hearing (see, Matter of Prudential Prop. & Cas. Ins. Co. v Schwartz, 104 AD2d 557).

It is well settled that a party seeking to vacate a default judgment on the ground of excusable default (see, CPLR 5015 [a] [1]) must establish both a meritorious claim and a reasonable excuse for the default (see, Schiavetta v McKeon, 190 AD2d 724, 725). The appellant’s affidavit establishes a meritorious claim. The appellant has also established a reasonable excuse for failing to respond to the petition. Since the petition sought a stay pending a hearing on the issue of physical contact and the appellant had no objection to a hearing on that issue, she did not oppose the petition. Bracken, J. P., O’Brien, Ritter, Friedmann and Goldstein, JJ., concur.