Echevarria v. Bank

• Decision Date: 10 June 1985
• Citation: Echevarria v. Bank, 490 N.Y.S.2d 525, 111 A.D.2d 781 (N.Y. App. Div. 1985)
• Parties: Yvette ECHEVARRIA, Respondent, v. Jacob BANK, Appellant, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

Page 525

490 N.Y.S.2d 525

111 A.D.2d 781

Yvette ECHEVARRIA, Respondent, v. Jacob BANK, Appellant, et al., Defendant.

Supreme Court, Appellate Division Second Department.

June 10, 1985.

Wortman, Fumuso, Kelly, DeVerna & Snyder, Huntington (Roger B. Lawrence, Huntington, of counsel), for appellant.

Fuchsberg & Fuchsberg, New York City (Paul F. McAloon and Abraham Fuchsberg, New York City, of counsel), for respondent.

Before LAZER, J.P., and GIBBONS, O'CONNOR and BROWN, JJ.

MEMORANDUM BY THE COURT.

In a medical malpractice action, defendant Jacob Bank appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County, dated May 18, 1984, as granted the plaintiff's motion to restore the action to the trial calendar.

Order modified by adding thereto provisions that (1) plaintiff's motion is deemed one to vacate her default in appearing for trial, to vacate a judgment of the Supreme Court, Nassau County, dated December 28, 1983, dismissing her complaint upon said default, and thereupon to restore the matter to the trial calendar and (2) that the judgment dated December 28, 1983, is vacated. As so modified, order affirmed insofar as appealed from, with costs to plaintiff.

Although no motion was made to open plaintiff's default in appearing for trial before moving to restore the case to the trial calendar, we have disregarded this technical defect and consider the motion, as Special Term apparently did, as one made, inter alia, to vacate the underlying judgment dismissing plaintiff's complaint (see, Hummeil v. Belanich, 63 A.D.2d 802, 405 N.Y.S.2d 149; Sal Masonry Contrs. v. Arkay Constr. Corp., 49 A.D.2d 808, 373 N.Y.S.2d 424; Wavrovics v. City of New York,...