Opinion
November 7, 1983
In an action to recover damages for personal injuries, etc., defendants appeal (1) from an order of the Supreme Court, Dutchess County (Rosenblatt, J.), entered February 18, 1983, which denied their motion, inter alia, to vacate a default judgment entered against them, and (2) as limited by their brief, from so much of an order of the same court, entered April 15, 1983, as upon reargument, adhered to the original determination. Appeal from the order entered February 18, 1983, dismissed, without costs or disbursements. That order was superseded by the order entered April 15, 1983, made upon reargument. Order entered April 15, 1983, reversed insofar as appealed from, without costs or disbursements, and upon reargument order entered February 18, 1983 vacated, motion granted and default vacated. Defendants' proposed answer, dated December 10, 1982 and annexed to their moving papers, is deemed served. Defendants defaulted in answering the complaint in this action. Although plaintiffs commenced this action by serving the summons and complaint upon the Secretary of State, the defendants assert that no corporate officer received those papers and consequently they were not forwarded to the defendants' insurer. Another suit involving the same accident, entitled Purdy v Kutsher's Resort, had been commenced in Sullivan County. That suit was actively defended until plaintiffs decided they had named the wrong corporate defendant and commenced the instant action. Under the circumstances, it is clear that defendants had no intention of abandoning the defense in the instant action. Defendants have set forth a meritorious defense, and plaintiffs have not shown any prejudice. Accordingly, the default judgment is vacated ( State Farm Mut. Auto. Ins. Co. v Viger, 94 A.D.2d 592). Mollen, P.J., Titone, Lazer and Rubin, JJ., concur.