Vargas v. City of New York

97 A.D.2d 379, 468 N.Y.S.2d 2, 1983 N.Y. App. Div. LEXIS 19935

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 18, 1983
• Status: Published

Opinion

Order of the Supreme Court, New York County (Kirschenbaum, J.) entered January 4, 1983, denying plaintiff’s motion for a default judgment against defendant John Doris Electrical Contractors and Engineers, unanimously modified, without costs, on the law, the facts and in the exercise of discretion, to condition such denial upon the payment of $1,000 costs, within 20 days after service of a copy of the order to be entered herein, with notice of entry. In the event the payment is not made within the time specified, the order appealed from is reversed and the motion granted, with costs. Defendant Doris, which had been in default in making answer to plaintiff’s complaint for a substantial period of time, avers that on December 8, 1982, it telephoned the office of plaintiff’s attorneys to request an extension of time to answer. It asserts that none of the attorneys were in and that it obtained an oral stipulation from one of the secretaries extending its time to answer to January 8, 1983. Its answer was served on December 21, 1982. Thereafter, plaintiff moved for the entry of a default judgment contending that no such stipulation was ever agreed upon. In light of the recent amendments to CPLR 2005 and 3012 (subd [d]) (L 1983, ch 318), it was appropriate for Special Term to excuse the default of Doris. However, we are of the opinion that costs, in the sum of $1,000, should have been imposed to compensate plaintiff for the annoyance and delay occasioned to him and we modify accordingly. Concur — Murphy, P. J., Sullivan, Ross, Silverman, and Bloom, JJ.