Mintz v. Fallon , 151 A.D.2d 396 ( 1989 )

Order of the Supreme Court, New York County (Herman Cahn, J.), entered on or about March 1, 1989, which granted defendant’s motion to vacate the default judgment entered against her to the extent of remanding the matter to a Special Referee to hear and report whether she was properly served but found defendant’s defense of fraud and/or lack of consideration to be without merit and, therefore, vacated the temporary restraining order previously obtained by defendant, is unanimously modified on the law to the extent of deleting that portion of the order finding defendant’s defense to be meritless and reinstating the temporary restraining order pending final disposition of the motion, and otherwise affirmed, without costs or disbursements.

Contrary to the finding of the Supreme Court, an examination of the record herein indicates the possibility of a meritorious defense. However, regardless of the merits of defendant’s defense of fraud and/or lack of consideration, it was premature for the Supreme Court to rule on this question, as well as to permit execution on the default judgment, prior to a determination of the jurisdictional issue and also whether defendant can demonstrate excusable neglect for failing to timely respond to the underlying action. Concur — Ross, J. P., Carro, Milonas, Wallach and Rubin, JJ.