Petroleum Construction Co. v. Queens Structure Corp. ( 1982 )

Order, Supreme Court, New York County (Levittan, J.), entered on June 9, 1982, which, inter alia, granted the plaintiff’s motion for substitution of counsel, vacated plaintiff’s default and granted defendant Queens Structure Corp.’s cross motion to the extent of assessing $100 costs as against the outgoing attorney, is unanimously modified, on the facts and in the exercise of discretion, so as to condition the vacatur of the default upon payment by plaintiff corporation to defendant-appellant Queens Structure Corp. in the sum of $1,500 within 30 days after entry of this court’s order, and otherwise affirmed, without costs; in the event of plaintiff’s failure to comply, the order appealed from is reversed, on the law, the facts and in the exercise of discretion, so as to deny the motion to vacate, without costs. We are convinced that plaintiff has set forth appropriate grounds, indicating a reasonable excuse for the default and a showing of merit to its claim (see, for example, Barasch v Micucci, 49 NY2d 594) to warrant the vacatur of its unintended default. However, under the facts of this case, it was inappropriate to assess costs against the outgoing attorney. Rather, this payment should have been levied against the corporate plaintiff and should have been in a substantially greater amount; we now invoke our discretion to so modify that award. Concur — Ross, J. P., Carro, Asch and Silverman, JJ.