Opinion
July 2, 1970
In an action to recover money damages, defendant appeals from an order of the Supreme Court, Westchester County, entered August 7, 1969, which denied his motion to open his default in answering the complaint and to vacate an order directing an assessment of damages, dated April 25, 1969. Order reversed, with $10 costs and disbursements, and defendant's motion granted, on condition that he file with the clerk of the trial court a bond in the sum of $250 for costs. Defendant's time to answer the complaint and to file the bond is extended until 10 days after service of the order hereon with notice of entry. A motion to open a default is addressed to the discretion of the court. To succeed the movant must first establish that the entry of judgment or of an order establishing the default occurred as a result of excusable default (CPLR 5015, subd. [a], par. 1; Krebs v. Raborg, 30 A.D.2d 520). In the case at bar, defendant did not answer the complaint because of the failure of his attorney to serve the paper and thereby protect the interests of his client. Such default by defendant was not deliberate and was therefore excusable. In order to open the default, defendant must also establish the existence of a meritorious defense to plaintiffs' claim ( Hurley v. Reoux, 29 A.D.2d 789). Defendant alleges that one meritorious defense to this action is that he served process on Albert J. Tiberi in the action entitled Bouxsein v. Tiberi. His other allegation of a meritorious defense is that Louis Bouxsein, one of the plaintiffs in both actions, was guilty of contributory negligence. In our opinion, defendant has alleged and shown by affidavit a prima facie meritorious defense sufficient to entitle him to a trial of the issues. Christ, P.J., Rabin and Benjamin, JJ., concur; Hopkins and Brennan, JJ., dissent and vote to affirm the order.