Bong Hag Ma v. Bong Sig Ma

254 A.D.2d 34, 677 N.Y.S.2d 784, 1998 N.Y. App. Div. LEXIS 9960

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 1, 1998
• Status: Published

Opinion

Order, Supreme Court, New York County (Lewis Friedman, J.), entered on or about November 10, 1997, which granted plaintiffs’ motion for a default judgment unless, among other things, defendants paid $500 to plaintiffs’ attorney, unanimously affirmed, without costs.

Although the motion court found that defendants offered “no realistic plausible excuse” for their failure to timely answer the amended complaint, it properly gave defendants an opportunity to open the default given a meritorious defense, as indicated by the denial of plaintiffs’ motion for a preliminary injunction, defendants’ vigorous defense of the action, which included a largely successful motion to dismiss the amended complaint and demands for documents during the period of delay, and plaintiffs’ failure to demonstrate any prejudice as a result of the three-month delay (see, Pansey v RKO Gen., 102 AD2d 762; Muney Design v Roscoe Mgt. Co., 97 AD2d 712). Conditioning vacatur of this default upon defendants’ payment of $500 to plaintiffs’ attorney was an appropriate exercise of discretion. Concur — Milonas, J. P., Rosenberger, Ellerin and Andidas, JJ.