Pansey v. RKO General, Inc.

102 A.D.2d 762, 477 N.Y.S.2d 18, 1984 N.Y. App. Div. LEXIS 18927

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 26, 1984
• Status: Published

Opinion

Appeal from the order entered August 17, 1983, Supreme Court, New York County (Irving Kirschenbaum, J.), is hereby dismissed as superseded in the appeal from the order entered March 7, 1984, without costs. Order of said court entered March 7, 1984 denying RKO’s motion to renew, and denying the motion of Investment Properties Associates (IPA) to vacate the default judgment against it, is unanimously reversed, on the law, the facts and in the exercise of discretion, without costs, and both motions to vacate the default judgment entered against the defendants are granted on condition that counsel for defendants each personally pay $500 to plaintiff within 30 days of this court’s order. In the event this condition is not complied with, the order appealed from is unanimously affirmed, with costs. H The delays by defendants’ attorneys in appearing and answering have, in the words of Special Term, “not been satisfactorily explained.” Law office failure is the only logical conclusion. Nonetheless, the delays were not of so great a duration as to preclude the exercise of our discretion, allowing all parties their day in court. It would seem that IPA possesses a meritorious defense to the action and there may be substantial merit to RKO’s defense, as well: The short delays did not truly prejudice plaintiff and, under the circumstances, a full exploration of the facts and an adjudication upon the merits seems preferable. Concur — Murphy, P. J., Sandler, Carro, Fein and Alexander, JJ.