Seybold v. Hertz Corp. , 31 A.D.2d 641 ( 1968 )

Appeal from an order of the Supreme Court, Westchester County, dated September 26, 1967, which granted plaintiffs’ motion for an assessment of damages. Order reversed, on the law and the facts, with $50 costs and disbursements to respondents against appellant, and motion denied. Appellant’s time to serve its answer is extended until 20 days after entry of the order hereon. In our opinion appellant’s opposing affidavits present an arguably meritorious, defense to respondents’ causes of action and an excuse which shows that appellant’s failure to serve an answer was not willful. In these circumstances we deem the granting of plaintiffs’ motion for a default judgment an improvident exercise of discretion. Christ, Acting P. J., Brennan, Rabin, Munder and Martuscello, JJ., concur.