Albin v. First Nationwide Network Mortgage Co.

188 A.D.2d 575, 591 N.Y.S.2d 481, 1992 N.Y. App. Div. LEXIS 14475

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 21, 1992
• Status: Published

Opinion

In an action to set aside a deed, the defendant appeals from an order of the Supreme Court, Suffolk County (Doyle, J.), entered December 13, 1990, which denied its motion to vacate a judgment of the same court, entered February 26, 1990, after an inquest, upon its default in appearing.

Ordered that the order is reversed, as a matter of discretion, without costs or disbursements, the motion is granted, and the defendant’s proposed answer is deemed served, on condition that the defendant’s attorneys personally pay to the plaintiffs the sum of $2,000 within 20 days after service upon the defendant’s attorneys of a copy of this decision and order with notice of entry; in the event that condition is not complied with, then the order is affirmed, with costs.

Considering the absence of prejudice to the plaintiffs, the meritorious nature of the defense, and the public policy in favor of resolving cases on the merits, we believe, as a matter of discretion, that the default should be excused (see, I.J. Handa, P. C. v Imperato, 159 AD2d 484). However, since the failure of the defendant’s attorneys to move promptly to compel acceptance of the answer should not be condoned, the imposition of a monetary sanction is appropriate (cf., Martinisi v Cornwall Hosp., 177 AD2d 549, 551). Lawrence, J. P., Miller, O’Brien and Pizzuto, JJ., concur.