
    Callanan Industries, Inc., Plaintiff, v Polyphase Contracting Corp., Respondent; State University Construction Fund, Defendant, and Continental Insurance Company, Appellant.
   Order, Supreme Court, Ulster County, entered on November 27, 1974, affirmed, with costs, on the opinion of Larkin, J., at Special Term. Greenblott, J. P., Sweeney, Main and Reynolds, JJ., concur; Kane, J., dissents and votes to reverse in the following memorandum. Kane, J. (dissenting). Plaintiff’s. default judgment was entered against Polyphase Contracting Corp. and defendant’s surety, appellant herein, the Continental Insurance Company. Although well aware of plaintiff’s efforts to enforce that judgment and Continental’s inclination to pay it, Polyphase nevertheless delayed making the instant motion to be relieved of its default until the judgment had in fact been paid by Continental. Furthermore, Polyphase’s proposed answer hardly amounts to a detailed showing of a meritorious defense and consists primarily of a loosely framed counterclaim in partial offset of plaintiff’s contractual action against it. Although the motion was properly considered by Special Term under CPLR 317, it is transparently obvious that Polyphase is more concerned with its relationship with Continental than in defeating plaintiff’s claim and, under these circumstances, it was an improvident exercise of discretion to disturb plaintiff’s position. Polyphase may commence a separate action against plaintiff or it may seek resolution of its rights and obligations with respect to its surety, but it should not be permitted to place in jeopardy the payment plaintiff has already received and delay the finalization of previously concluded litigation.  