Opinion
June 10, 1985
Appeal from the Supreme Court, Nassau County (Widlitz, J.).
Order modified by adding thereto provisions that (1) plaintiff's motion is deemed one to vacate her default in appearing for trial, to vacate a judgment of the Supreme Court, Nassau County, dated December 28, 1983, dismissing her complaint upon said default, and thereupon to restore the matter to the Trial Calendar and (2) that the judgment dated December 28, 1983, is vacated. As so modified, order affirmed insofar as appealed from, with costs to plaintiff.
Although no motion was made to open plaintiff's default in appearing for trial before moving to restore the case to the Trial Calendar, we have disregarded this technical defect and consider the motion, as Special Term apparently did, as one made, inter alia, to vacate the underlying judgment dismissing plaintiff's complaint ( see, Hummeil v. Balanich, 63 A.D.2d 802; Sal Masonry Contrs. v. Arkay Constr. Corp., 49 A.D.2d 808; Wavrovics v. City of New York, 13 A.D.2d 738). It is not contended that Special Term abused its discretion in effectively vacating plaintiff's default and restoring the within action to the Trial Calendar, nor do we perceive any such abuse under the facts of the instant case.
We have considered the appellant's remaining contentions and find them to be without merit. Pergamon Press v. Tietze ( 81 A.D.2d 831) and Parker v. McMahon ( 53 A.D.2d 1034) are distinguishable on their facts and do not compel a contrary result. Lazer, J.P., Gibbons, O'Connor and Brown, JJ., concur.