
    Theresa Carrano, Respondent, v. City of New York, Appellant.
   In a negligence action to recover damages for personal injuries, defendant appeals from so much of an order of the Supreme Court, Queens County, dated September 14, 1965, as, in granting its motion to vacate its default in serving its answer to the complaint, imposed the condition that defendant waive the defense of the Statute of Limitations. Order reversed insofar as appealed from, without costs, and motion granted unconditionally. It appears that the defendant city’s 28-day delay in serving an answer was due to inadvertence caused by the heavy press of work and that the Statute of Limitations for the commencement of a tort action against the city (General Municipal Law, § 50-i) constitutes a meritorious defense to the action. It does not appear that plaintiff suffered the impairment of a right or any other prejudice in law by reason of the delay. In the circumstances, the city’s motion to vacate its default should have been granted unconditionally (Bermudez v. City of New York, 22 A D 2d 865; Hirsch v. Flick, 17 A D 2d 961; Karp v. Antelman, 285 App. Div. 955; Sears v. Hetfield, 216 App. Div. 767). Christ, P. J., Hopkins, Munder, Martuscello and Kleinfeld, JJ., concur.  