Opinion
June 4, 1974
Order, Supreme Court, New York County, entered October 4, 1973, unanimously reversed, on the law and the facts and in the exercise of discretion, motion to vacate default granted and matter remanded for trial of the framed issue, with $40 costs and disbursements of this appeal to abide the event. The framed issue as to whether the report to the police was timely made appeared on the Trial Calendar for the first time on February 13, 1973, and respondent MVAIC failed to appear. On motion to vacate its default, respondent asserts inadvertent clerical error and points out the meritorious nature of the framed issue as demonstrated by the prior order of the court. The trial court, in denying the motion, did not delineate its rationale or make any finding. Under these circumstances, it appearing that the default was due to a single, isolated, inadvertent mistake and not due to willful default or persistent neglect, reason and justice dictate that respondent be afforded its day in court.
Concur — Nunez, J.P., Kupferman, Lupiano, Capozzoli and Lane, JJ.