Musco v. Conte

In an action to recover damages for wrongful death and conscious pain and suffering, plaintiff appeals from an order of the Supreme Court, Westchester County, dated March 11, 1969, which 'denied plaintiff’s three successive motions to open her default and restore the action to the Trial Calendar. Order reversed, on the law and the facts, with a single bill of $10 costs and disbursements jointly against respondents filing separate briefs, and motions granted. In our opinion, the record sufficiently establishes that plaintiff never intended to abandon the action. Absent demonstrated prejudice to defendants, it was an improvident exercise of discretion to deny the motion (cf. Marco v. Sachs, 10 N Y 2d 542; Boyle v. Krebs & Schulz Motors, 18 A D 2d 1010; Blau v. Levine, 28 A D 2d 1137; Briskman v. Kushner, 33 A D 2d 1042). Christ, P. J., Rabin, Martuscello, Kleinfeld and Benjamin, JJ., concur.