Gambardella v. County of Nassau

104 A.D.2d 922, 480 N.Y.S.2d 542, 1984 N.Y. App. Div. LEXIS 20370

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 15, 1984
• Status: Published

Opinion

— In an action, inter alia, to recover damages for violation of the equal protection clauses of New York State and United States Constitutions, defendant County of Nassau appeals from an order of the Supreme Court, Nassau County (Vitale, J.), entered July 13, 1983, which, inter alia, granted that branch of plaintiffs’ motion which sought leave to enter a default judgment against it.

Order modified, as a matter of discretion, by deleting the third, fourth and fifth decretal paragraphs thereof, and substituting therefor a provision denying the afore-noted branch of plaintiffs’ motion. As so modified, order affirmed, without costs or disbursements, and appellant’s answer is deemed served, on condition that it pays to plaintiffs $1,000 within 20 days after service upon it of a copy of the order to be made hereon, with notice of entry; in the event the condition is not complied with, order affirmed, with costs.

In light of the circumstances and the legislation which modified the Barasch-Eaton rule (Barasch v Micucci, 49 NY2d 594; Eaton v Equitable Life Assur. Soc., 56 NY2d 900; see CPLR 2005, 3012, subd [d]; L 1983, ch 318) and in pursuit of the long-established public policy that actions be resolved on their merits, we exercise our discretion to relieve appellant of its default. We have imposed, however, an appropriate sanction on appellant (see Newman v Goodman Bros. Monuments, 100 AD2d 840; Salch v Paratore, 100 AD2d 845; Mineroff v Macy’s & Co., 97 AD2d 535; Robinson v USAA Cas. Ins. Co., 97 AD2d 837). Lazer, J. P., Brown, Boyers and Eiber, JJ., concur.