Weissblum v. Mostafzafan Foundation

90 A.D.2d 741, 455 N.Y.S.2d 803, 1982 N.Y. App. Div. LEXIS 18935

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 23, 1982
• Status: Published

Opinions

Order, Supreme Court, New York County (Tyler, J.), entered August 20,1981, granting defendant’s motion to vacate its default, affirmed, without costs or disbursements. Eaton v Equitable Life Assur. Soc. of U. S. (56 NY2d 900) holds that Special Term abuses its discretion as a matter of law when it vacates the default of a defendant who has no excuse other than law office failure. That is not the case here. Admittedly there was law office failure when the defendant’s attorneys misfiled the summons and complaint and the error was not discovered until at most 22 days after the time to answer had expired. But here we have an additional factor. Special Term found, and we believe properly so, that, if there was not an extension of time granted for the defendant’s answer, the communications between the attorneys provided reasonable ground for the defendánt’s attorney’s belief that a late answer would be accepted. Given that circumstance, together with the brevity of time — 28 days — between the date of the default and the proffering of the answer, the lack of prejudice to the plaintiff, and the merit of the defense, we find no abuse of discretion. Concur — Murphy, P. J., Carro, Bloom and Lynch, JJ.