Metzger v. Esseks

Order, Supreme Court, New York County (Shirley Fingerhood, J.), entered on or about November 28, 1989, which granted plaintiffs’ motion to vacate a default, restored defendants’ motion pursuant to CPLR 510 (3) to the calendar, and denied said motion, unanimously affirmed, without costs.

Defendants argue the court improperly exercised its discretion in vacating plaintiffs’ default on the basis of an affirmation by plaintiffs’ counsel which alleged only that his office had never received service of the motion papers. We find the affidavit of service by defendants’ attorney’s employee (Jean…