
    Eileen Kenny et al., Appellants, v Lenox Hill Hospital, Defendant, and George Yatrakis, Respondent.
   — Order of the Supreme Court, New York County (G. B. Smith, J.), entered March 26, 1981, which denied plaintiffs’ motion for an order staying the traverse in the action until defendant George Yatrakis returned to complete an examination before trial, is affirmed, without costs. Order of the Supreme Court, New York County (G. B. Smith, J.), entered January 20, 1982, which denied plaintiffs’ motion for an order vacating their default in refusing to proceed with a traverse, is reversed, on the law and facts and in the exercise of discretion, without costs, the motion by plaintiffs to vacate their default is granted and an immediate hearing on the traverse is directed. On March 27,1981, the parties appeared before the special referee who had been designated to hear and report on the issue of jurisdiction over defendant Yatrakis. Plaintiffs offered no proof at this hearing on the ground that an examination before trial relating to the jurisdiction defense must first be held. The referee recommended that the motion to dismiss the affirmative defense of lack of jurisdiction be denied for lack of proof. Justice Shorter confirmed this report on July 9, 1981 and dismissed the complaint against Yatrakis for lack of jurisdiction without prejudice to plaintiffs moving before Justice Smith to excuse their default at the traverse. In denying vacatur of the default, Justice Smith noted that no valid reason was offered by plaintiffs for failing to proceed at .the traverse. However, the parties were immured in a procedural morass and the plaintiffs clearly acted in good faith in declining to proceed before the special referee. In addition, although not relied upon by plaintiffs, it appears from the'record that the process server was not available to testify at the traverse on March 27, 1981, because he was physically outside the State. Plaintiff Eileen Kenny was severely and permanently injured, and all discovery on the merits of this case has been completed. Under all the circumstances present herein plaintiffs should have an opportunity for a hearing on the traverse without any preliminary deposition on the jurisdictional issue. Concur — Sullivan, J. P., Ross, Carro, Asch and Milonas, JJ.  