Sorman v. Miss Elliette, Inc.

34 A.D.2d 764

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 14, 1970
• Status: Published

Opinion

Order entered December 11, 1960, denying the motion by defendant, Miss Elliette, Znc., to vacate a default judgment entered against said defendant, unanimously reversed, on the law, on toe facts and in the exercise of discretion, without .costs and without disbursements and the application to open the default is remanded to Trial Term, Tart I to “ Le heard and determined by the justice who presided in the calendar part at this time the cause was assigned” (See Rules of ,Supreme Court, New York and_Bronx Counties, § 660.5, subd. [c], par. [3L cl. [i]; 22 N5TCRR 660.5 [c] j)3] [i]). Upon such renewed application, mfovant should submit a further affidavit of merit, and may submit any other atfftdavits, if so advised. In Kahn v. Kinder (33 A D 2d 903) this court called attention to the Rules of Supreme Ccvirt, New York and Bronx Counties, ab-jve cited, and the necessity of complying with them even when a ease .has Ve'en assigned to a “blockbuster” part. Cobsequently, the application to open the default herein should have been decided by the Justice who presided in the calendar part at the time the cause was assigned. In reversing and remanding we do not indicate any view as to the merits of the application. Concur—McGivern, J. P., Markewich, Steuer and Bastow, JJ.