Deer Park Restaurant Inc. v. O'Neill

The complaint was dismissed on motion at Special Term for plaintiff’s willful failure to appear for examination before trial. . On appeal, the order dismissing the complaint was affirmed by this court (279 App. Div. 801). Pending such appeal, plaintiff moved, at another Special Term, on substantially the same facts as those which it had submitted in opposition to the motion to dismiss its complaint, to cure its default, to vacate the judgment entered upon the prior order, and to set a date for plaintiff’s examination. The motion was granted subsequent to the affirmance of the order upon which…