Spano v. National Biscuit Co.

In consolidated negligence actions to recover damages for personal injuries, the third-party plaintiffs appeal from an order of the Supreme Court, Kings County, dated April 21, 1971, which conditionally (l) granted the third-party defendant’s renewed motion to vacate a default judgment and (2) restored the action to the trial calendar. Order reversed, with $10 costs and disbursements, and renewed motion denied. Under the circumstances herein, where the third-party defendant defaulted not once but twice and failed to show either a sufficient excuse for the default or an adequate affidavit of merit, we find it was an abuse of discretion for the Trial Term to vacate the default. Munder, Acting P. J., Latham, Shapiro, Gulotta and Christ, JJ., concur.