Du-Art Film Laboratories, Inc. v. Wharton International Films Inc.

91 A.D.2d 572, 457 N.Y.S.2d 60, 1982 N.Y. App. Div. LEXIS 19399

Opinions

— Order, Supreme Court, Appellate Term, First Department, dated December 11, 1981 affirming order of Civil Court, New York County (Katz, J.), entered May 14, 1981 denying motion to vacate default judgment, is reversed, on the law and the facts, and in the exercise of discretion, and the motion to vacate the default judgment is granted, without costs. On application to vacate a default, the defendant must show a reasonable excuse for the default and a meritorious defense. As to the latter, the record contains a sworn statement by the individual defendant with personal knowledge of the facts that the photographic material was faulty because black and white material was printed sepia, and color master material was printed with black frame lines across the material making it unusable. As to the excuse for the default, the individual defendant alleges that, “[b]eing without funds to hire an attorney,” he prepared a written “response” to the complaint and went to the clerk’s office to file it; that the clerk refused to accept the response because one of the defendants was a corporation which had to be represented by an attorney; that the individual defendant then went to Volunteer Lawyers for the Arts (VLA), an organization which provides free legal assistance to needy persons in artistic fields, and he was under the impression that they were going to take care of the matter; that several months later he called VLA to check on the status of the matter and was told that they had not yet retained an attorney. The matter was referred by the VLA to the present attorney for the defendant apparently in February, 1981, approximately four months after service of the summons. It appears that the answer then tendered was rejected by plaintiff. We think we may fairly extend some leniency to a pro se party whose default is due to his unfamiliarity with a technical requirement — that a corporate defendant retain a lawyer — in a case involving so small an amount that scarcely warrants the retention of a lawyer, and where it appears that the pro se party attempted in good faith to respond to the summons. (Cf. Gray v Trucking Co., 90 AD2d 750; Q.P.I. Rests, v Slevin, 88 AD2d 844; Swidler v World-Wide Volkswagen Corp., 85 AD2d 239; Bouxsein v Bialo, 35 AD2d 523; Warbett v Polokoff, 21 AD2d 771.) Concur — Sullivan, J. P., Bloom, Fein and Alexander, JJ.