Playcon Enterprises v. Yack

—Order unanimously reversed on the law without costs and matter remitted to Supreme Court for further proceedings in accordance with the following Memorandum: Supreme Court erred in denying without a hearing the motion of defendant Flextec International, Ltd. (Flextec) to vacate the default judgment and dismiss the underlying action. A hearing is necessary to determine whether defendant Stephen Yack was an agent of Flextec and agreed not only to supply materials, but also to make the repairs requested by plaintiff (see, Tonawanda School Empls. Fed. Credit Union v Zack, 242 AD2d 894). We therefore reverse the judgment and remit the matter to Supreme Court for that purpose. (Appeal from Order of Supreme Court, Erie County, Kane, J. — Vacate Judgment.) Present — Pigott, Jr., P. J., Green, Wisner, Scudder and Kehoe, JJ.