Arndt v. Merrick Shopping Center

103 A.D.2d 788, 477 N.Y.S.2d 999, 1984 N.Y. App. Div. LEXIS 19412

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 16, 1984
• Status: Published

Opinion

— In an action to recover damages for personal injuries, plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Burke, J.), dated July 18, 1983, as, upon granting his motion for reargument, adhered to its original determination denying his motion to vacate his default and to restore the action to the Trial Calendar. 11 Order reversed insofar as appealed from, as a matter of discretion, without costs or disbursements, and motion to vacate the default and restore the action to the Trial Calendar granted, on condition that plaintiff’s attorney personally pay the defendant the sum of $1,500 within 20 days after service upon him of a copy of the order to be made hereon, with notice of entry; in the event that condition is not complied with, then order affirmed insofar as appealed from, with costs. H While in no way condoning plaintiff’s attorney’s neglect in seeking to restore this action to the calendar, under the circumstances of this case, plaintiff’s default should be vacated and he should be allowed to again place his case on the Trial Calendar (CPLR 2005, 3404). Such neglectful conduct does, however, warrant the imposition of an appropriate monetary sanction (Pirnak v Savino, 96 AD2d 857). Titone, J. P., Gibbons, Brown and Niehoff, JJ., concur.