Limco Manufacturing Corp. v. Mattiace Industries, Inc.

67 A.D.2d 939, 413 N.Y.S.2d 201, 1979 N.Y. App. Div. LEXIS 10710

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 13, 1979
• Status: Published

Opinion

— In an action to declare plaintiff the owner of certain realty, to recover possession of said property, and for damages, plaintiff appeals from an order of the Supreme Court, Nassau County, dated September 7, 1978, which granted defendant’s motion to vacate its default. Order affirmed, without costs or disbursements, on condition that defendant’s attorney personally pay $250 to plaintiff’s counsel within 20 days after service upon defendant of a copy of the order to be entered hereon, together with notice of entry thereof; in the event such condition is not complied with, then order reversed, with $50 costs and disbursements, and motion denied. In the absence of any proof that defendant abandoned the action and in the absence of any showing of prejudice to plaintiff, Special Term did not abuse its discretion in granting defendant’s motion to vacate its default. However, since the record indicates that defendant’s default was caused in some measure by its attorney’s neglect, it is appropriate to invoke the holding of Moran v Rynar (39 AD2d 718, 719) and "save the action for the client, while imposing upon the attorney, personally, a penalty for his neglect”. Mollen, P. J., Suozzi, Rabin and Martuscello, JJ., concur.