58 A.D.2d 913 | N.Y. App. Div. | 1977
Appeal from an order of the Supreme Court at Special Term entered November 4, 1976 in Warren County, which granted a motion by plaintiff to be relieved of his default in removing this action from the Deferred Calendar and directed that the action be added to the Day Calendar. There is evidence in this record that the case was originally marked "off’ because of a failure of communication involving the court clerk. Plaintiff has, in addition, set forth sufficient showings of a prima facie case and a lack of prejudice to defendants to convince us that Special Term did not abuse its discretion in relieving him from the default. We find to be unpersuasive the characterization by defendants of their loss of an opportunity to cross-examine an apparently hostile witness as "extremely critical” to the issues presented by one of their affirmative defenses. The necessary requirements of excusable neglect, proof of merit and lack of prejudice to the opposition having been established, the order should be affirmed (Sal Masonry Contrs. v Arkay Constr. Corp., 49 AD2d 808; cf. Casey v Fuller Brush Co., 51 AD2d 639). Order affirmed, with costs. Koreman, P. J., Sweeney, Mahoney, Larkin and Herlihy, JJ., concur.
