Matthews v. Pena

In a negligence action 'defendants Pena appeal from an order of the Supreme Court, Nassau County, dated February 26, 1969, which denied their motion to vacate an order of said court dated December 26, 1968. The order of December 26, 1968 denied defendants’ motion to vacate the substituted service of the summons upon defendants. Order reversed, with $10 costs and disbursements; motion granted, and order dated December 26, 1968 vacated; and the matter remitted to the Special Term for a hearing on the issue of the validity of the service made pursuant to CPLR 308 (subd. [3]). In our opinion, it was improvident exercise of discretion to deprive defendants of the opportunity, previously granted by the court, to test the sufficiency of the service. In the posture of this record we do not deem the failure of defendants’ attorney to appear at the eventual adjourned date to be fatal. The appearance of defendants and their attorney on three prior scheduled hearing dates have been given due consideration. Hopkins, Acting' P. J., Munder, Martuscello, Brennan and Benjamin, JJ., concur.