SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
June 10, 1968
DOMINICK BLASI, RESPONDENT,
CARMEN BOUCHER, DEFENDANT AND THIRD-PARTY PLAINTIFF-APPELLANT, ET AL., DEFENDANTS, ET AL., THIRD-PARTY DEFENDANTS
Brennan, Acting P. J., Rabin, Benjamin, Munder and Martuscello, JJ., concur.
In our opinion, CPLR 2221 does not mandate that a motion to vacate a conditional order must be referred to the Justice who made the order, where the motion is returnable on the day of trial. The situation at bar presents an exceptional case and the doctrine against collateral vacatur is not applicable(Willard v. Willard, 194 App. Div. 123; People v. National Trust Co., 31 Hun 20; N. Y. Legis. Doc., 1959, No. 17, pp. 183-184). However, we are of the further opinion that the trial court erred in improvidently denying the motion to vacate. Appellant's severe illness is not contradicted and her inability to aid her attorney in framing the bill of particulars is an adequate excuse explaining the default. The denial of the motion was a ruling made during the course of the trial and, in view of the reversal of the judgment, the question of vacatur of the preclusion order is reopened and the motion should be granted.
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