Rooney Pace, Inc. v. Braverman

74 A.D.2d 555, 425 N.Y.S.2d 330, 1980 N.Y. App. Div. LEXIS 10175

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 28, 1980
• Status: Published

Opinion

Order, Supreme Court, New York County, entered August 23, 1979, granting defendant’s motion to vacate the default judgment, unanimously modified, on the law and in the exercise of discretion, to the extent of conditioning vacatur of the default upon payment of $250 costs by defendant to plaintiff within 20 days after service upon defendant of a copy of the order to be entered herein, together with notice of entry therein, and with the judgment to stand as security, and, as so modified, affirmed, without costs and disbursements. In the event such condition is not complied with, then order reversed, with costs and disbursements, and motion denied. Order, Supreme Court, New York County, entered October 5, 1979, denying plaintiff’s motion to modify the prior order of said court entered August 23, 1979, unanimously reversed and the motion granted to the extent of conditioning vacatur of the default as hereinabove indicated, without costs and disbursements. On this record we conclude that Special Term properly determined that the defendant’s default was excusable and should be opened. However, it was an improvident exercise of discretion not to impose, as further conditions to the granting of such relief, that the judgment shall stand as security pending the final disposition of the action and that defendant pay plaintiff $250 as a penalty for his neglect (see Limco Mfg. Corp. v Mattiace Inds., 67 AD2d 939; Treitel v Arnold Chait, Ltd., 20 AD2d 711). Concur—Fein, J. P., Sullivan, Markewich, Lupiano and Bloom, JJ.