Oberlein v. City of New York

In an action inter alia to permanently enjoin the defendants from restricting or obstructing the use of a certain avenue in the Town of Hempstead as a public street, plaintiff appeals from an order of the Supreme Court, Nassau County, entered December 20, 1974, which granted the motion of the defendant City of New York (1) to vacate its default in answering, (2) to set aside a judgment of the same court, dated April 25, 1974, granted after an inquest, and (3) for leave to interpose an answer. Order affirmed, with $50 costs and disbursements. The time within which the city may serve its answer is extended until 20 days after entry of the *806order to be made hereon. Special Term is vested with broad discretionary power in the opening of a default judgment. Its discretion will be upheld on appeal in the absence of gross abuse (see 9 Carmody-Wait 2d, NY Prac., § 63:186). The record before us does not warrant a finding of an abuse of discretion. Cohalan, Acting P. J., Hargett, Damiani, Rabin and Hawkins, JJ., concur.