Novoa v. Board of Education , 414 N.Y.S.2d 1010 ( 1979 )

In a negligence action to recover damages for personal injuries, etc., the plaintiffs appeal from (1) an order of the Supreme Court, Kings County, entered November 15, 1977, which granted the defendant’s motion, inter alia, to vacate its default in appearing and answering and (2) a further order of the same court dated March 14, 1978, which denied their motion to resettle the order entered November 15, 1977 (see Farmer’s Nat. Bank v Underwood, 12 App Div 269). Order entered November 15, 1977, affirmed, without costs or disbursements, on condition that the office of the Corporation Counsel of the City of New York pay the sum of $500 to the plaintiffs within 20 days after service upon the defendant of a copy of the order to be entered hereon together with notice of entry thereof; in the event such condition is not complied with, order reversed, with $50 costs and disbursements and motion denied. Order dated March 14, 1978, affirmed, without costs or disbursements. In our opinion, the defendant’s default in appearing and answering, which was occasioned by the neglect of its attorney, the Corporation Counsel of the City of New York, should not have been vacated unconditionally (see Moran v Rynar, 39 AD2d 718). Hopkins, J. P., Damiani, Rabin and Mangano, JJ., concur.