Bruno v. Village of Port Chester

74 A.D.2d 629, 425 N.Y.S.2d 264, 1980 N.Y. App. Div. LEXIS 10298

Opinion

In a negligence action to recover damages for personal injuries, plaintiff appeals from so much of an order of the Supreme Court, Westchester County, dated August 22, 1979, as granted defendants’ motion to vacate a default judgment entered against them, upon condition that defendants pay $500 to the plaintiff. Order modified by adding a provision thereto further conditioning the granting of defendants’ motion upon the additional payment by defendants’ counsel to plaintiff of the sum of $500 as a penalty. As so modified, order affirmed insofar as appealed from, with $50 costs and disbursements payable to the plaintiff; in the event such condition is not complied with then order reversed, with $50 costs and disbursements, and defendants’ motion denied. The payments are to be made within 20 days after service upon the defendants of a copy of the order to be made hereon with notice of entry thereof. Trial Term did not abuse its discretion in conditionally relieving defendants of their default. However, we believe that justice requires the imposition of more stringent conditions than those imposed (see Jette v Long Is. Jewish-Hillside Med. Center, 61 AD2d 808). Rabin, J. P., Cohalan, O’Connor and Weinstein, JJ., concur.