Michaels v. County of Nassau

245 A.D.2d 276, 665 N.Y.S.2d 944, 1997 N.Y. App. Div. LEXIS 12039

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 1, 1997
• Status: Published

Opinion

—In an action to recover damages for malicious prosecution, the defendants appeal from an order of the Supreme Court, Nassau County (Kutner, J.), dated September 29, 1995, which, inter alia, denied their motion to vacate so much of an order of the same court, dated February 23, 1995, as granted the plaintiffs cross motion for leave to enter a default judgment against the defendants upon their default in answering the complaint.

Ordered that the order is reversed, on the law and in the exercise of discretion, without costs or disbursements, the defendants’ motion to vacate so much of the order dated February 23, 1995, as granted the plaintiffs cross motion for leave to enter a default judgment is granted, the order dated February 23, 1995, is modified accordingly, and the matter is remitted to the Supreme Court, Nassau County, for further proceedings; and it is further,

Ordered that the defendants’ time to serve their answer is extended until 20 days after service upon them of a copy of this decision and order with notice of entry.

The record indicates that the defendants possessed a reasonable excuse for their default and a meritorious defense (see, Putney v Pearlman, 203 AD2d 333). Accordingly, the defendants’ motion to vacate that portion of the order dated February 23, 1995, which was entered upon their default in answering the complaint should be granted so that the parties may be put “back on an even keel for a determination on the merits” (Khadem v Pan Am. World Airways, 151 AD2d 311, 312). Mengano, P. J., Joy, Florio and Luciano, JJ., concur.