Sun Jet Transportation Car Service, Inc. v. Jackman

294 A.D.2d 489, 742 N.Y.S.2d 843, 2002 N.Y. App. Div. LEXIS 5210

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 20, 2002
• Status: Published

Opinion

—In an action, inter alia, for a judgment declaring that the plaintiff Glenrose Rawlins is the sole shareholder of the plaintiff Sun Jet Transportation Car Service, Inc., and for injunctive relief, the plaintiffs appeal from (1) a decision of the Supreme Court, Kings County (Mason, J.), dated June 19, 2001, and (2) an order of the same court, dated December 1, 2001, which denied their motion for leave to vacate their default in appearing for trial and to restore the case to the trial calendar.

Ordered that the appeal from the decision is dismissed, without costs or disbursements, as no appeal lies from a decision (see Schicchi v Green Constr. Corp., 100 AD2d 509); and it is further,

Ordered that the order is reversed, as a matter of discretion, without costs or disbursements, the motion is granted, the default is vacated, and the matter is remitted to the Supreme Court, Kings County, for further proceedings.

Under the circumstances, the Supreme Court improvidently exercised its discretion in denying the plaintiffs’ motion to vacate the default and restore the case to the trial calendar (see Krebs v Cabrera, 250 AD2d 736). Ritter, J.P., Smith, Luciano and Crane, JJ., concur.