Appellate Division of the Supreme Court of New York, 1970

Musco v. Conte

Musco v. Conte
Appellate Division of the Supreme Court of New York · Decided May 11, 1970
34 A.D.2d 796; 313 N.Y.S.2d 328; 1970 N.Y. App. Div. LEXIS 4927
Musco v. Conte

Opinion of the Court

In an action to recover damages for wrongful death and conscious pain and suffering, plaintiff appeals from an order of the Supreme Court, Westchester County, dated March 11, 1969, which 'denied plaintiff’s three successive motions to open her default and restore the action to the Trial Calendar. Order reversed, on the law and the facts, with a single bill of $10 costs and disbursements jointly against respondents filing separate briefs, and motions granted. In our opinion, the record sufficiently establishes that plaintiff never intended to *797abandon the action. Absent demonstrated prejudice to defendants, it was an improvident exercise of discretion to deny the motion (cf. Marco v. Sachs, 10 N Y 2d 542; Boyle v. Krebs & Schulz Motors, 18 A D 2d 1010; Blau v. Levine, 28 A D 2d 1137; Briskman v. Kushner, 33 A D 2d 1042). Christ, P. J., Rabin, Martuscello, Kleinfeld and Benjamin, JJ., concur.

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