Opinion
January 25, 1971
In a real property mortgage foreclosure action, plaintiff appeals from an order of the Supreme Court, Queens County, dated August 17, 1970, which (1) granted a motion by defendants O'Neill to open their default in answering the complaint and to permit them to serve an answer and (2) stayed the appointed Referee from computing pursuant to a previous order. Order reversed, without costs, and motion denied. In this record there is no adequate showing by defendants O'Neill of a satisfactory excuse for their default or a meritorious defense to the action (General Obligations Law, § 5-521, subd. 1; Matter of Waldman, 32 A.D.2d 780, affd. 25 N.Y.2d 677; General Phoenix Corp. v. Cabot, 300 N.Y. 87; Salvin v. Myles Realty Co., 227 N.Y. 51; Elias v. Schwartz, 22 Misc.2d 129; Koppell v. McNeil, 21 Misc.2d 237; Margulis v. Messinger, 34 Misc.2d 699, 702; Leader v. Dinkler Mgt. Corp., 20 N.Y.2d 393; Hoffman v. Nashem Motors, 20 N.Y.2d 513; Hirsch v. Buono Tire Co., 29 A.D.2d 545, affd. 22 N.Y.2d 930). Hence, it was an improvident exercise of discretion to open their default (CPLR 5015; Bouxsein v. Bialo, 35 A.D.2d 523; Krebs v. Raborg, 30 A.D.2d 520; Hurley v. Reoux, 29 A.D.2d 789; Koppell v. McNeil, supra). Munder, Acting P.J., Martuscello, Shapiro, Brennan and Benjamin, JJ., concur.