Kremer Const. Co., Inc. v. City of Yonkers

• Decision Date: 27 November 1972
• Parties: KREMER CONSTRUCTION COMPANY, INC., Respondent, v. The CITY OF YONKERS, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 96

338 N.Y.S.2d 96

40 A.D.2d 870

KREMER CONSTRUCTION COMPANY, INC., Respondent, v. The CITY OF YONKERS, Appellant.

Supreme Court, Appellate Division, Second Department.

Nov. 27, 1972.

Before LATHAM, Acting P.J., and SHAPIRO, GULOTTA, CHRIST and BRENNAN, JJ.

MEMORANDUM BY THE COURT.

In a breach of contract action, defendant appeals from an order of the Supreme Court, Westchester County, dated January 11, 1972, which granted plaintiff's renewed motion to vacate a default judgment, entered March 29, 1971, dismissing the complaint.

Order affirmed, without costs.

The continuation of the examination before trial of plaintiff, by its president, Mr. Paul R. Kremer, and of defendant, shall proceed at a time and place to be fixed in a written notice of not less than 10 days, to be given by defendant, or at such time and place as may be agreed upon by the parties. If the president of plaintiff is unable, because of continued ill health, to be examined, an officer or employee thereof, with knowledge of the facts, shall appear for examination before trial in his stead.

In our opinion, the Special Term properly exercised its discretion in granting the motion to vacate the default judgment (CPLR 5015, subd. (a), par. 1; see Dahlem v. Universal School Bus Leasing, 35 A.D.2d 992, 993, 318 N.Y.S.2d 117, 119).