Gables Properties, Inc. v. Finnmarc Corp.

49 A.D.2d 923, 373 N.Y.S.2d 642, 1975 N.Y. App. Div. LEXIS 11184

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 20, 1975
• Status: Published

Opinion

In an action for goods sold and delivered, plaintiff appeals from an order of the Supreme Court, Kings County, dated May 23, 1975, which, inter alia, granted defendants’ motion to vacate a default judgment in favor of plaintiff. Order modified by (1) deleting from the first decretal paragraph thereof the words "in all respects” and inserting therein, after the word "granted”, the following: "except that the judgment shall stand as security” and (2) deleting the second decretal paragraph thereof. As so modified, order affirmed, without costs. Defendants’ time to serve their answer is extended until 20 days after entry of the order to be made hereon. Under the circumstances outlined in the deposition of one of the corporate officers of the defendant corporations, Special Term properly exercised its discretion in vacating the judgment. Under these same circumstances, indicating, at the very least, misconduct of a different corporate officer, we agree that the default was excusable. However, we feel that the judgment should stand as security pending trial. Rabin, Acting P. J., Cohalan, Margett, Brennan and Shapiro, JJ., concur.