Q.P.I. Restaurants Ltd. v. Slevin , 58 N.Y.2d 769 ( 1982 )

58 N.Y.2d 769 (1982)

Q.P.I. Restaurants Ltd., Appellant,
v.
Desmond Slevin et al., Respondents.

Court of Appeals of the State of New York.

Decided December 15, 1982.

David G. Samuels for appellant.

Seymour I. Cohen for respondents.

Concur: Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER.

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order reversed, with costs, motion to vacate the default judgment denied and matter remitted to the Appellate Division, First Department, for consideration of the issues not already passed upon by that court. Question certified answered in the affirmative. The Appellate Division abused its discretion as a matter of law in conditionally vacating the default judgment taken against defendants as a consequence of their failure to answer, for which the only excuse offered was law office failure (Eaton v Equitable Life Assur. Soc. of U. S., 56 N.Y.2d 900).