Sisalcords do Brazil Ltd. v. Fiacao Brasileira de Sisal, S. A.

34 A.D.2d 778, 310 N.Y.S.2d 870, 1970 N.Y. App. Div. LEXIS 4668

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 26, 1970
• Status: Published

Opinion

Order, entered January 14, 1970, unanimously reversed, on the law, on the facts, and in the exercise of discretion, vacated, the motion for renewal of application for vacatur of default judgment granted, and motion to vacate and set aside default judgment granted on condition, however, that the defendant shall pay to plaintiff the sum of $500 costs, to be paid within 20 days of date of entry of order hereon, and pay also the $30 costs and disbursements of this appeal which are awarded to plaintiff, such costs to be paid within 20 days from time of taxation thereof; and on further condition that defendant shall serve its answer within 20 days of date of entry of order hereon. In the event of a failure of compliance with the aforesaid conditions, the motion to vacate the default shall be denied and the judgment shall stand. Appeal, insofar as taken from order entered November 24, 1969, unanimously dismissed, without costs and without disbursements, as academic. The record discloses substantial issues involving the merits of plaintiff’s alleged claims and, although we conclude that defendant has failed to satisfactorily explain its failure to timely answer the complaint, the default was of comparatively short duration and the defendant should be given an opportunity to defend upon compliance with the aforesaid terms and conditions. Concur — Eager, J. P., Capozzoli, Markewich and Nunez, JJ.