Pajor v. Kralik ( 1982 )

— Appeal from order, Supreme Court, New York County (Nadel, J.), entered April 2, 1981, dismissed as superseded by order of same court and Justice, entered June 8, 1981, without costs. The latter order reversed, in the exercise of discretion, defendant-appellant’s motion for renewal granted, and, on renewal, defendant-appellant’s motion to open a default granted to the extent of permitting defendant-appellant to answer the complaint herein within 10 days of service of the order entered hereon, conditioned however upon payment by defendant-appellant to plaintiff-respondent, within 10 days after service of the same order, of $500 costs, together with the costs and disbursements of this appeal; failing compliance with such condition, the order is affirmed, with costs and disbursements to respondent. Should defendant-appellant comply with the condition hereby imposed, he may also within a reasonable time thereafter renew his motion to compel service of a complaint making a more definite statement of plaintiff’s cause; should there be no such compliance, such a motion would be obviated. It' appears to us that the delay in proceeding was caused by delay in transmission of the process served upon defendant from the insurance broker to whom it had been entrusted, to the insurance company through the medium of an adjuster. We do not regard this as the sort of dilatory tactic encountered in Barasch v Micucci (49 NY2d 594; see Swidler v World-Wide Volkswagen Corp., 85 AD2d 239). We impose costs because defendant should have been more diligent in following up his initial act of transmission. Concur — Kupferman, J. P., Sullivan, Markewich, Silverman and Asch, JJ.