Ortuzar v. Faherty

53 A.D.2d 604, 383 N.Y.S.2d 649, 1976 N.Y. App. Div. LEXIS 13276

Opinion

In a negligence action to recover damages for personal injuries, etc., plaintiffs appeal from an order of the Supreme Court, Westchester County, dated January 8, 1976, which denied their motion to (1) vacate a default judgment and (2) restore the case to the Trial Calendar. Order reversed, with $50 costs and disbursements payable by respondent Howard S. Howard (sued herein as Sonny Howard), motion granted, and the action is directed to be restored to its regular position on the Trial Term Calendar, with leave to plaintiffs to move expeditiously to obtain jurisdiction of the infant defendant, Scott Howard, if they be so advised. It was an improvident exercise of discretion to refuse to grant plaintiffs a continuance to rectify the error and to deny their motion to be relieved of the default (see Springer v Marangio, 38 AD2d 852; Moran v Rynar, 39 AD2d 718). Gulotta, P. J., Hopkins, Martuscello, Latham and Shapiro, JJ., concur.