Michael Stewart, appellant, v. Raymond Corp., et al., respondents. (2011)

Submitted—April 27, 2011

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Spodek, J.), dated May 26, 2009, which denied his motion for leave to enter judgment against the defendants on the ground that they failed to appear or answer the complaint, and granted the application of the defendants Raymond Corporation, Abel Womack, Inc., and Womack Material Handling Systems, Inc., to compel him to accept their late answers.

ORDERED that the order is affirmed, with costs.

The Supreme Court properly denied the plaintiff's motion for leave to enter a default judgment against the defendants, which was made on the ground that the defendants failed to appear or answer the complaint.   After the action was commenced in August 2008, but before their time to answer expired, the defendants filed a notice to remove the action to federal district court.   By this act, the defendants appeared in the action and, thus, could not have been deemed in default (see City of Newburgh v. 96 Broadway LLC, 72 AD3d 632, 633;  Carlin v. Carlin, 52 AD3d 559, 561;  Quinn v. Booth Mem. Hosp., 239 A.D.2d 266;  see also Benifits By Design Corp. v Contractor Mgt. Servs., LLC, 75 AD3d 826, 828;  Matter of Sessa v Board of Assessors of Town of N. Elba, 46 AD3d 1163, 1164).   Accordingly, the Supreme Court properly denied the plaintiff's motion for leave to enter a default judgment against the defendants and properly granted the application of the defendants Raymond Corporation, Abel Womack, Inc., and Womack Material Handling Systems, Inc., to compel the plaintiff to accept their late answers.

MASTRO, J.P., FLORIO, LEVENTHAL, BELEN and COHEN, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court