Walton v. Carrion — 261 A.D.2d 469

Majority

p. 469

Jean Walton, Respondent, v Louis J. Carrion et al., Appellants, et al., Defendant.

[687 NYS2d 300]

—In an action to recover damages for personal injuries, the defendants Louis J. Carrion and Haydee M. Carrion appeal from an order of the Supreme Court, Richmond County (Sangiorgio, J.), dated June 19, 1998, which granted the plaintiff’s motion to vacate an order of the same court, entered March 4, 1998, upon her default in opposing their motion for summary judgment dismissing the complaint insofar as asserted against them, and, upon vacatur, denied their motion.

Ordered that the order is affirmed, with costs.

The trial court did not improvidently exercise its discretion in vacating its previous order obtained upon the plaintiff’s default, due to law office failure, in opposing the appellants’ motion for summary judgment dismissing the complaint insofar

p. 470

as asserted against them (see, CPLR 2005, 5015 [a] [1]; General Elec. Capital Auto Lease v Terzi, 232 AD2d 449 , 450; Miles v Blue Label Trucking, 232 AD2d 382 ). As to the merits of the defendants’ summary judgment motion, we find that the plaintiff raised triable issues of fact (see, CPLR 3212 [b]).

The defendants’ remaining contentions are either without merit or academic in light of our determination. O’Brien, J. P., Friedmann, H. Miller and Smith, JJ., concur.

Cases cited

General Electric Capital Auto Lease, Inc. v. Terzi 232 AD2d 449 N.Y. App. Div. 1996-10-15 at 450 p. 470
Miles v. Blue Label Trucking, Inc. 232 AD2d 382 N.Y. App. Div. 1996-10-07 p. 470