Behar v. City of New York

In a wrongful death action, plaintiff appeals from an order of the ■ Supreme Court, Kings County, dated January 2, 1979, which, upon granting the motion of defendant Fields Linens, Inc., to vacate its default in opposing plaintiffs cross motion to dismiss the third affirmative defense of said defendant, denied the cross motion. Order affirmed, without costs or disbursements. Although the application which led to the order under review should not have been entertained because it was in the nature of a motion to reargue and not a motion to vacate a default (see CPLR 2216, 2221), under the facts herein this court is not bound by the doctrine of the *995law of the case and may pass upon the merits of the motion. The cross motion to dismiss the third affirmative defense was properly denied. The record fails to establish that plaintiff was self-employed and the resolution of this issue must await further proceedings. O’Connor, J. P., Lazer, Rabin and Gulotta, JJ., concur.