Opinion
2017-999 N C
01-16-2020
Bonnie HASSIN and Mark Hassin, Respondents, v. Oliver BRODLIEB, Defendant, and East Hills Chrysler Jeep Dodge, Appellant.
Richard M. Hendler of counsel, for appellant. Bonnie Hassin and Mark Hassin, respondents pro se.
Richard M. Hendler of counsel, for appellant.
Bonnie Hassin and Mark Hassin, respondents pro se.
PRESENT: THOMAS A. ADAMS, P.J., BRUCE E. TOLBERT, JERRY GARGUILO, JJ
ORDERED that the order is reversed, without costs, the motion by defendant East Hills Chrysler Jeep Dodge to vacate so much of the judgment as was entered against it is granted and the matter is remitted to the District Court for all further proceedings.
In this small claims action to recover damages for breach of warranty, East Hills Chrysler Jeep Dodge (defendant) appeals from an order of the District Court denying its motion to vacate so much of a judgment as was entered against it, awarding plaintiffs the principal sum of $5,000.
In support of defendant's motion, it was alleged that counsel for defendant had advised the clerk that he had a prior engagement in another court, but the court had proceeded with the "trial" in his absence and allowed the service manager, who had appeared on behalf of defendant, to testify. At the "trial," the service manager also informed the court that he was waiting for counsel, who was appearing in another courtroom.
Under the circumstances presented, we find that the court improvidently exercised its discretion in denying defendant's motion to vacate the judgment (see Abate v. Long , 261 AD2d 252 [1999] ; Zatorski v. Klein , 11 AD2d 790 [1960] ).
Accordingly, the order is reversed, the motion by defendant East Hills Chrysler Jeep Dodge to vacate so much of the judgment as was entered against it is granted and the matter is remitted to the District Court for all further proceedings.
ADAMS, P.J., TOLBERT and GARGUILO, JJ., concur.