Opinion
November 30, 1970
In consolidated negligence actions to recover damages for personal injuries, third-party defendant Peter Scalamandre Sons, Inc., appeals from two orders of the Supreme Court, Nassau County, (a) the first dated June 19, 1969, which denied its motion to vacate its default in interposing an answer to the third-party complaint of third-party plaintiff Ralph Jannotta, Inc., and (b) the second dated August 18, 1969, which denied its motion to reargue, or, in the alternative, for an order, de novo, vacating its default and permitting it to serve its answer. Orders reversed, without costs, and appellant's motions granted, on condition that the answer be served within 10 days after the service of a copy of the order entered hereon, with notice of entry. In our opinion appellant presented both a meritorious defense and a reasonable excuse for its default. The appealability of the order dated June 19, 1969 was settled by the order of this court dated November 3, 1969, denying respondent's motion to dismiss the appeal therefrom. We hold that the order dated August 18, 1969, though denominated an order denying a motion for reargument, was in fact and substance an order denying a motion for leave to renew on new facts and, hence, was appealable ( Soffair v. Koffler, 29 A.D.2d 659; Matter of Rand, 273 App. Div. 859; Conklin v. Palisades Inter-State Park Comm., 278 App. Div. 588; Drinkwater v. Grady, 285 App. Div. 1176; Matter of Richardson, 286 App. Div. 887). Christ, P.J., Rabin, Hopkins, Munder and Latham, JJ., concur.