Opinion
January 24, 1984
Order of the Supreme Court, New York County (M. Goldman, J.), entered July 30, 1982, is modified, on the law and facts and in the exercise of discretion, to vacate the default of defendant Pegalis Wachsman, P.C., to direct that an answer be served by defendant as to the second summons and complaint served by plaintiffs within 10 days after entry of this order, and otherwise affirmed, without costs. Defendant law firm interposed an affirmative defense of lack of personal jurisdiction and moved to dismiss the original complaint served in this action. After hearing, the special referee recommended dismissal because of improper service. Before defendant moved to confirm this report, plaintiffs re-served the identical summons and complaint on the Secretary of State on January 4, 1982. Judgment dismissing the original action was entered May 24, 1982. Thereafter, plaintiffs moved for a default and assessment of damages against defendant for its failure to answer the second summons and complaint. In the order appealed from herein, Special Term denied the motion "as the proceeding has already been dismissed as to this defendant." However, as noted, the original proceeding had been dismissed against plaintiffs. When the motion for a default was made by plaintiffs, defendant was in default as to the second summons and complaint. However, defendant was not deliberately dilatory but merely technically neglectful in the midst of a procedural morass. Therefore, we exercise our discretion to vacate this default and direct an answer so that the parties can proceed to litigate this action on the merits.
Concur — Sandler, J.P., Asch, Bloom and Fein, JJ.
I would affirm the order appealed from denying plaintiffs' motion for the reason, as stated by Special Term, that the action had already been dismissed as to defendant Pegalis Wachsman, P.C. Judgment had been entered on that dismissal and apparently no appeal taken therefrom.