Opinion
December 7, 1970
In a negligence action to recover damages for personal and property injuries, defendant appeals from an order of the Supreme Court, Nassau County, dated August 18, 1970, which denied its motion (1) to vacate a prior ex parte order holding defendant in default and setting the case down for an inquest and (2) to open defendant's default and for leave to serve an answer to the complaint. Order reversed, without costs; defendant's motion granted; its default opened; and prior order dated July 10, 1970 vacated. Defendant's time to serve an answer to the complaint is extended until 10 days after service upon its attorney of a copy of the order to be entered hereon, with notice of entry thereof. The record clearly shows that defendant's default in pleading was not willful and that plaintiff has a questionable case on the merits. Under these circumstances it was an abuse of discretion to deny the motion to vacate the default ( Bouxsein v. Bialo, 35 A.D.2d 523; Carrano v. City of New York, 34 A.D.2d 980; Fabel v. Fabel, 33 A.D.2d 922; Morabito v. Champion Swimming Pool Corp., 18 A.D.2d 706). Hopkins, Acting P.J., Martuscello, Latham, Brennan and Benjamin, JJ., concur.