Miller v. Cooper

¶1In a negligence action to recover damages for personal and property injuries, defendant appeals, as limited by her brief, from so much of an order of the Supreme Court, Putnam County, dated May 24, 1971, as denied the following portions of her motion: (1) to set aside plaintiff's notice of application for a default judgment and an assessment of damages and (2) to open defendant’s default in answering the complaint and for leave to serve an answer to the complaint. Order reversed insofar as appealed from, with $50 costs and disbursements to plaintiff, and said portions of defendant’s motion granted. Defendant’s time to serve an answer to the complaint is extended until 10 days after service of a copy of the order to be entered hereon, with notice of entry thereof. The record shows that defendant’s default in pleading was not willful and that plaintiff has a questionable ease on the merits. Under these circumstances, it was an improvident exercise of discretion to deny defendant the relief here in question (Schwan v. B. MCK Contr., 35 A D 2d 962; Carrano v. City of New York, 34 A D 2d 980). Hopkins, Acting P. J., Latham, Christ, Brennan and Benjamin, JJ., concur.