Damiano v. Corhan , 345 N.Y.S.2d 1022 ( 1973 )

In an action to recover damages for harassment, defendant appeals from an order of the Supreme Court, Kings County, dated February 24, 1973, denying his motion to vacate a default judgment against him and to permit him to answer the complaint. Order affirmed, without costs, with leave to defendant, if so advised, to move de nova to open his default on papers showing a connection between his claimed mental state and the default incurred. The instant record on appeal does not support the claim that defendant, a septuagenarian, was of such impaired mentality that, when acting pro se, he did not understand the significance of the summons and complaint served upon him, and could not thereafter competently comply with a direction, made on a prior motion to open his default, to post a surety company bond in the sum of $1,000 and to pay to plaintiffs $250 costs. In view of this court’s liberal policy in opening default judgments, where, in the interest of justice and in the court’s discretion, such relief is appropriate (Schutzer v. Berger, 40 A D 2d 725), defendant will be afforded another opportunity to show the exigencies he now asserts. Munder, Acting P. J., Latham, Shapiro, Christ and Benjamin, JJ., concur.