Bowen v. Fiore ( 1971 )

In this negligence action to recover damages for personal injuries, etc., plaintiffs appeal from an order of the Supreme Court, Kings County, dated March 15, 1971, which, inter alia, denied their motion for an assessment of damages, upon defendants’ default in answering the complaint, and vacated the default on condition that defendants pay $500 costs. Order affirmed, with $50 costs and disbursements to respondents. Although defendants’ attorney has been careless and dilatory in the service of defendants’ answer and in his motion to open defendants’ default, plaintiffs’ attorneys also 'have been somewhat dilatory in the prosecution of this action and in their moving for the damage assessment. Under all the circumstances of this ease, it is our opinion that Special Term has not acted improvidently and has not abused its discretion. Rabin, P. J., Hopkins, Munder, Martuseello and Gulotta, JJ., concur.