Rosenberg v. Brooklyn Union Gas Co. , 475 N.Y.S.2d 348 ( 1984 )

In a negligence action, defendant appeals from an order of the Supreme Court, Kings County (Dowd, J.), dated February 23,1983, which granted respondent’s motion to compel defendant to accept service, of a reply to its counterclaim, directed respondent to serve said reply within 60 days after entry of said order, and denied defendant’s cross motion for leave to enter a default judgment on the counterclaim. H Order affirmed, without costs or disbursements, and respondent’s reply is deemed served, on condition that respondent’s attorney personally pay defendant $250 within 20 days after service upon him of a copy of the order to be made hereon, with notice of entry; in the event the condition is not complied with, then order reversed, as a matter of discretion, with costs, motion denied and cross motion granted, f Under the facts of this case, Special Term did not abuse its discretion in relieving respondent from his default in replying to defendant’s counterclaim. However, the court should have imposed an appropriate sanction. We, therefore, modify the order appealed from to impose such a sanction. Lazer, J. P., Gibbons, Bracken and Lawrence, JJ., concur.