Opinion
May 27, 1971
On this appeal from an amended judgment of the Supreme Court, New York County, entered on November 25, 1970, upon an order entered on June 17, 1969, granting plaintiff's motion for summary judgment and after an assessment of damages, which brings up for review pursuant to CPLR 5501 (subd. [a], par. 1) an order entered October 31, 1969, denying defendants' motion to vacate their default in opposing the motion for summary judgment, the order denying the motion to open the default is unanimously reversed on the law and the facts, and the motion is granted, on condition that defendants-appellants pay to the plaintiff $500 costs within 30 days from the date of entry of a copy of the order to be entered hereon, in addition to $50 costs and disbursements of this appeal; and upon complying with those conditions, the order entered on June 17, 1969 is unanimously reversed, on the law, and the motion for summary judgment denied, and the amended judgment entered on November 25, 1970 is unanimously reversed, on the law, and vacated. In the interests of justice, the plaintiff will be granted a preference. Initially, plaintiff moved for summary judgment. That motion was not opposed by the defendants and was granted by order entered June 17, 1969, and a trial on the issue of damages was directed. Thereafter, the defendants moved to vacate their default, which motion was denied by order entered October 31, 1969. The defendants thereafter appealed from the denial of the motion to vacate the order granting summary judgment. However, such appeal was not perfected and was dismissed by order of this court dated January 6, 1970, the motion to dismiss being unopposed. A trial as to the issue of damages was thereafter held, a verdict rendered and final judgment was entered from which the defendants appeal. Plaintiff urges that the defendants having previously appealed from the order denying the motion to vacate the order granting summary judgment and having had such appeal dismissed for failure to prosecute, cannot review the same order on an appeal from the judgment. Hence, plaintiff moves to dismiss the appeal insofar as it seeks review of the order denying the motion to vacate. This position is without merit. Recently, this court stated, "It is noted that, following the original order for summary judgment and before assessment, defendant filed a notice of appeal therefrom but permitted it to be dismissed for lack of prosecution, appealing anew after final judgment. Plaintiffs contend that, by reason of abandonment of that appeal, defendant is estopped from now pursuing it. We find no merit in this argument, but we nevertheless recognize that, considering the disposition here made, the distinct probability is that, among other economies, four precious days of judicial time could have been obviated by prosecution of the original appeal. For this reason, costs and disbursements are denied to the successful appellant." ( Whyman Whyman v. Philips, 36 A.D.2d 812, 813.) Therefore, the order which denied defendants' motion to vacate the granting of summary judgment is properly before this court for review upon appeal from final judgment. It is our opinion that Special Term should have granted the motion to vacate the default and should have vacated the order of summary judgment. It appears that the plaintiff on its motion for summary judgment did not attempt to show what caused the accident, relying instead on the doctrine of res ipsa loquitur. In ordinary circumstances while res ipsa loquitur makes out a prima facie case for plaintiff, that fact, in and of itself, does not warrant nor require the granting of summary judgment (see George Foltis, Inc. v. City of New York, 287 N.Y. 108, 119; Davis v. Goldsmith, 19 A.D.2d 514). Moreover, attached to the motion papers in support of the application for summary judgment was the examination before trial of the defendants' employee who testified that the tank was properly installed, the brackets were proper and the installation secure. Hence, it would appear that based upon the moving papers alone, triable issues of fact were raised and even in the absence of opposition to the motion, summary judgment should not have been granted (see Ortiz v. Knighton, 14 A.D.2d 679; Connell v. Buitekant, 17 A.D.2d 944). The motion for summary judgment having been erroneously granted, the application to vacate should have been favorably entertained and granted. Although we agree with the appellants' contention that the motion to vacate the default should have been granted, the appellants' tactics throughout, considering their failure to perfect the afore-mentioned earlier appeal thereby permitting the matter to proceed to a trial on the issue of damages, require the imposition of the conditions stated above. Moreover, under the circumstances, the plaintiff should be granted a preference. Settle order on notice.
Concur — McGivern, J.P., Markewich, Kupferman, Tilzer and Eager, JJ.