Wilensky v. Feinstein

In an action inter alia for an accounting, in which a default judgment was entered in plaintiffs favor, the corporate defendant appeals from so much of an order of the Supreme Court, Richmond County, dated November 9, 1973, as denied the branch of defendants’ motion which was to vacate the judgment as to the corporate defendant. Order modified, in the interests of justice and in the exercise of discretion, by deleting so much of the first decretal paragraph thereof as follows the word "granted”. As so modified, order affirmed insofar as appealed from, without costs or disbursements. Appellant’s time to serve its answer is extended until 20 days after entry of the order to be made hereon. In our opinion, the denial of the motion to vacate the default as to appellant *1031was an improvident exercise of discretion, in view of the fact that plaintiff, prior to the proceedings which culminated in the default judgment, concealed from the court the death of the previous individual defendant (see CPLR 5015, subd [a], par 3). This is especially true since the decedent was the sole shareholder of the corporation and the person upon whom service was made, individually and on behalf of the corporation. Hopkins, Acting P. J., Hargett, Rabin, Shapiro and Hawkins, JJ., concur.