Giammatteo v. Ortgies

Memorandum by the Court. In an automobile negligence action to recover for personal injuries and property damage defendant appeals from that part of an order of the Supreme Court at Special Term whieh set aside its prior order entered upon plaintiff’s default in appearing.. Appellant’s contentions with respect to the insufficiency of plaintiff’s moving papers are correct and must be sustained. Order reversed, on the law and the facts, and in the exercise of discretion, without costs, and motion denied without prejudice, however, to an application by plaintiff to be relieved of his default pursuant to CPLR 5015 upon a proper showing of the circumstances relied upon to explain the default and the merit of his cause of action. Settle order on notice.