Pompe v. City of Yonkers

142 A.D.2d 634, 530 N.Y.S.2d 997, 1988 N.Y. App. Div. LEXIS 7398

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 11, 1988
• Status: Published

Opinion

— In an action to invalidate a deed conveyed pursuant to a judgment of a tax foreclosure, the plaintiffs appeal from (1) an order of the Supreme Court, Westchester County (Dachenhausen, J.), entered April 3, 1987, which denied their motion to vacate the default judgment entered therein on August 5, 1986, and (2) an order of the same court, entered June 16, 1987, which denied their motion for reargument.

Ordered that the appeal from the order entered June 16, 1987, is dismissed, as no appeal lies from the denial of reargument; and it is further,

Ordered that the order entered April 3, 1987, is reversed, on the condition that the plaintiffs file a note of issue within 20 days after service upon them of a copy of this decision and order with notice of entry; and it is further,

Ordered that if the plaintiffs fail to so file a note of issue, the order entered April 3, 1987, is affirmed, with costs; and it is further,

Ordered that the plaintiffs are awarded one bill of costs.

Public policy favors a determination of actions on their merits. While the plaintiffs’ conduct to date hardly qualifies as an exemplar of diligence, the record shows that their failure to prosecute was not willful or indicative of an intention to abandon the cause of action, and that they assert facts which may entitle them to some form of relief and which are sufficient to justify a vacatur.

Thus, in the interest of justice and as an exercise of our discretion, we reverse the order denying vacatur to afford the plaintiffs the opportunity to resolve the contested issues on the merits on the condition that the plaintiffs file a note of issue within 20 days of the service upon them of a copy of this decision and order. Mollen, P. J., Thompson, Rubin and Sullivan, JJ., concur.