Opinion
October 26, 1970
Appeal from an order of the Supreme Court at Special Term, entered December 15, 1967 in Tioga County, which denied a motion to set aside a judgment entered March 30, 1966 against defendants upon their default at Trial Term. The action was placed upon the Trial Calendar by a note of issue filed October 16, 1964. At a Special Term on November 3, 1965 defendants moved for summary judgment and plaintiff cross-moved for leave to serve an amended complaint, summary judgment being denied on condition that plaintiff serve the amended pleading within 20 days. Without the entry of an order, plaintiff served the amended complaint on November 5, 1965 and, on March 19, 1966, defendants' attorney wrote that the purported amended complaint was being considered a nullity since it was not verified. By virtue of a notice of motion dated March 8, 1966 defendants moved for reargument and, upon its return on March 18, 1966, it was decided that reargument was unnecessary. The Special Term Justice on March 24, 1966 granted an order to show cause returnable before him on March 31, 1966 and, in announcing his decision, wrote: "this Court must take the position that the service of an amended complaint without the service and filing of an order was premature and void." He decided that "Plaintiff should still have an opportunity to serve an amended complaint following the entry of an order disposing of the original motion", with an order to be submitted by either party. The order was entered on August 12, 1966. However, by virtue of defendants' failure to appear for trial on March 23, 1966, another Justice, presiding at a Trial Term, had granted a default judgment in favor of plaintiff which was entered on March 30, 1966. In deciding applications under CPLR 5015 (subd [a]), it is necessary to consider the factual background of each case. Here, the default and delay were, at least in part, excusable since defendants and their attorney, by virtue of judicial proceedings in Special Term occurring in March, 1966 and after the entry of judgment, had the right to assume that proceedings were still pending at Special Term, that a default would not be taken at Trial Term and that the attempted service of an amended complaint was void and that plaintiffs were still to serve such a pleading. Order reversed, on the law and the facts; default judgment vacated and action restored to the Supreme Court Trial Calendar of Tioga County, without costs. Reynolds, J.P., Staley, Jr., Greenblott, Cooke and Sweeney, JJ., concur.