Opinion
May 12, 1970
Order entered December 11, 1969, denying the motion by defendant, Miss Elliette, Inc., to vacate a default judgment entered against said defendant, unanimously reversed, on the law, on the facts and in the exercise of discretion, without costs and without disbursements and the application to open the default is remanded to Trial Term, Part I to "be heard and determined by the justice who presided in the calendar part at the time the cause was assigned" (See Rules of Supreme Court, New York and Bronx Counties, § 660.5, subd. [c], par. [3], cl. [i]; 22 NYCRR 660.5 [c] [3] [i]). Upon such renewed application, movant should submit a further affidavit of merit, and may submit any other affidavits, if so advised. In Hahn v. Binder ( 33 A.D.2d 903) this court called attention to the Rules of Supreme Court, New York and Bronx Counties, above cited, and the necessity of complying with them even when a case has been assigned to a "blockbuster" part. Consequently, the application to open the default herein should have been decided by the Justice who presided in the calendar part at the time the cause was assigned. In reversing and remanding we do not indicate any view as to the merits of the application.
Concur — McGivern, J.P., Markewich, Steuer and Bastow, JJ.