Caufield v. Musella

84 A.D.2d 556, 443 N.Y.S.2d 276, 1981 N.Y. App. Div. LEXIS 15629

Opinion

In a personal injury action, plaintiff appeals from an order of the Supreme Court, Nassau County (Murphy, J.), dated April 27, 1981, which denied her motion to reinstate a prior order of the same court, dated September 30,1980, which had (1) directed a severance of the action as against defendant Tri-County Sewer & Drain Company, Inc., and (2) set the matter down for an inquest against that defendant based upon its defaults in appearing and answering. Order reversed, on the law, with $50 costs and disbursements, motion granted, order of September 30, 1980 reinstated, and matter remitted to Special Term for an assessment of damages as against the defendant Tri-County Sewer & Drain Company, Inc. Since the repeated defaults of defendant Tri-County Sewer & Drain Company, Inc., in appearing and answering were occasioned solely by law office failure, Special Term erred, as a matter of law, in failing to reinstate the order of September 30,1980, which severed plaintiff’s action against that defendant and directed an inquest (see Barasch v Micucci, 49 NY2d 594; Bruno v Village of Port Chester, 77 AD2d 580, vacating on rearg 74 AD2d 629). Damiani, J.P., Gulotta, Margett and Bracken, JJ., concur.