Majority
p. 796Fanny Musco, as Administratrix of the Estate of Salvatore Musco, Deceased, Appellant, v. John L. Conte, Defendant and Third-Party Plaintiff-Respondent, X. R. C. Realty Corporation et al., Respondents; Yonkers General Hospital et al., Third-Party Defendants-Respondents.
In an action to recover damages for wrongful death and conscious pain and suffering, plaintiff appeals from an order of the Supreme Court, Westchester County, dated March 11, 1969, which 'denied plaintiff’s three successive motions to open her default and restore the action to the Trial Calendar. Order reversed, on the law and the facts, with a single bill of $10 costs and disbursements jointly against respondents filing separate briefs, and motions granted. In our opinion, the record sufficiently establishes that plaintiff never intended to
p. 797
abandon the action. Absent demonstrated prejudice to defendants, it was an improvident exercise of discretion to deny the motion (cf. Marco v. Sachs, 10 N Y 2d 542 ; Boyle v. Krebs & Schulz Motors, 18 A D 2d 1010 ; Blau v. Levine, 28 A D 2d 1137 ; Briskman v. Kushner, 33 A D 2d 1042 ). Christ, P. J., Rabin, Martuscello, Kleinfeld and Benjamin, JJ., concur.
Cases cited
- Marco v. Sachs 10 N Y 2d 542 p. 797
- Blau v. Levine 28 A D 2d 1137 p. 797