Copper v. Adams Petroleum Corp. , 270 N.Y.S.2d 974 ( 1966 )

In a negligence action to recover damages for injury to property resulting from a fire, plaintiff appeals from an order of the Supreme Court, Queens County, entered May 7, 1965, which denied his motion (1) to vacate a prior severance of the counterclaim of defendants Weeker and Levin and (2) to dismiss said counterclaim or, (3) in the alternative, to direct said defendants to accept a reply to said counterclaim. The severance had been ordered during trial of the action, which trial ended upon declaration of a mistrial. The ground for the severance was plaintiff’s default in serving his reply. Order modified by amending its decretal paragraph so as (1) to grant the motion to the extent of (a) vacating the severance of the counterclaim, (b) directing defendants Weeker and Levin to accept plaintiff’s reply and (e) restoring the counterclaim to the Trial Calendar for trial together with the primary action and (2) otherwise to deny the motion. As so modified, order affirmed, without costs. Plaintiff’s time to serve a reply to the counterclaim is extended until 10 days after entry of the order hereon. In our opinion the record in this ease discloses that the failure of plaintiff to reply to the counterclaim was not willful. Hence, he should be permitted to have his day in court on the issues raised therein.

Brennan, Acting P. J., Hill, Rabin, Hopkins and Benjamin, JJ., concur.