Opinion
February 29, 1960
In an action to recover damages for injuries to person and property, and for medical expenses and loss of services, the appeal is from so much of an order granting respondent's motion for reargument as on reargument granted her motion to open her default in pleading and permitted her to answer. Order modified by striking therefrom everything following the word "Ordered" in the second ordering paragraph and by substituting therefor the words "that upon reargument the original decision denying defendant's motion to open her default is adhered to". As so modified, order insofar as appealed from affirmed, with $10 costs and disbursements to appellants. The facts stated in the moving papers fail to show that respondent's default was due to mistake, inadvertence, surprise or excusable neglect (cf. Heller v. Ward, 10 A.D.2d 633). Moreover, there is no factual showing that respondent has a meritorious defense. Nolan, P.J., Kleinfeld, Christ, Pette and Brennan, JJ., concur.