Gamache v. Ahern

52 A.D.2d 836, 382 N.Y.S.2d 827, 1976 N.Y. App. Div. LEXIS 12659

Opinion

In an action inter alia to rescind a contract for the sale of realty, plaintiffs appeal from an order of the Supreme Court, Dutchess County, dated June 30, 1975, which (1) granted defendants’ motion to vacate a default judgment to the extent of permitting defendants to interpose an answer and (2) provided that the judgment is to stand as security pending resolution of the action. Order affirmed, with $50 costs and disbursements. The time within which defendants may serve their answer is extended until 20 days after entry of the order to be made hereon. Defendants, by their allegations of a conditional settlement and of a delivery of documents out of escrow by plaintiffs’ attorney, have, in our opinion, sufficiently alleged both a reasonable excuse for their default in answering and a meritorious defense to this action, which was commenced just prior to the settlement. Furthermore, the default was not deliberate or willful and plaintiffs have not been unduly prejudiced. Under the circumstances presented, the granting of the motion was a matter within the proper exercise of Special Term’s discretion and should not be disturbed (see CPLR 5015, subd [a], par 1; Krebs v Raborg, 30 AD2d 520; Hurley v Reoux, 29 AD2d 789). Gulotta, P. J., Hopkins, Latham, Margett and Shapiro, JJ., concur.