Opinion
Decided December 15, 1982
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, OLIVER C. SUTTON, J.
David G. Samuels for appellant.
Seymour I. Cohen for respondents.
On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 N.Y.CRR 500.2 [g]), order reversed, with costs, motion to vacate the default judgment denied and matter remitted to the Appellate Division, First Department, for consideration of the issues not already passed upon by that court. Question certified answered in the affirmative. The Appellate Division abused its discretion as a matter of law in conditionally vacating the default judgment taken against defendants as a consequence of their failure to answer, for which the only excuse offered was law office failure ( Eaton v Equitable Life Assur. Soc. of U.S., 56 N.Y.2d 900).
Concur: Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER.