Mandell v. Blackman-Hoffman Co.

92 A.D.2d 885, 460 N.Y.S.2d 94, 1983 N.Y. App. Div. LEXIS 17272

Opinions

— In an action to recover damages for personal injuries and wrongful death, the defendant appeals from an order of the Supreme Court, Nassau County (Burke, J.), dated September 20,1982, which denied its motion to vacate a default judgment entered against it on July 23, 1982 on the issue of liability. Order reversed, without costs or disbursements, and matter remitted to Special Term for a hearing in accordance herewith. In denying defendant’s application to vacate a default judgment, Special Term failed to address a threshold question as to which there is a sharply contested issue of fact, namely, whether plaintiff’s counsel orally agreed in a telephone conversation to extend the defendant’s time to answer until July 20,1982. It is manifest that if such extension was, in fact, granted, the default judgment must be vacated. Accordingly, we reverse and remit the matter to Special Term for a hearing to determine whether such extension was granted. If the court determines that the extension was granted, defendant should be afforded an opportunity to interpose an answer. On the other hand, if the court determines that no such extension was granted, it should then pass on defendant’s contention that the default should be vacated because it has a legal excuse for the delay in answering and has a meritorious defense. Thompson, Weinstein and Niehoff, JJ., concur.