Rubens v. Morrison Development Corp. , 521 N.Y.S.2d 649 ( 1987 )

— Order, Supreme Court, Bronx County (Irwin M. Silbowitz, J.), entered October 23, 1986, which, upon reargument, adhered to the court’s original decision denying the motion of defendant to vacate the default judgment entered against it, modified, on the law and the facts and in the exercise of discretion, to grant defendant’s motion to vacate the default judgment on condition that, within 15 days of service upon him of a copy of this court’s order with notice of entry, defendant’s attorney personally pay plaintiff’s attorney the sum of $1,500 and on further condition that defendant continue to maintain the undertaking presently in effect in the sum of $35,000 to secure any judgment that might subsequently be entered against it in favor of plaintiff. Upon compliance with both conditions, defendant’s answer, dated December 5, 1985, will be deemed timely served nunc pro tunc. As so modified, the order is otherwise affirmed, without costs and disbursements.

Counsel’s failure to timely comply with the order (DiFede, J.) entered on or about October 15, 1985, directing service of an answer omitting the dismissed counterclaim and payment of costs, was attributable to excusable law office failure. As noted by Special Term in its original order of January 2, 1986, defendant should be given the "benefit of the doubt” in light of the undertaking which had previously been posted to secure any judgment obtained by plaintiff. Justice DiFede’s December 10, 1985 denial of reargument, after entry of the default judgment, merely left the original conditions in effect and did not pass upon the issue of defendant’s default in complying with the October 15, 1985 order. Concur—Murphy, P. J., Kupferman, Sandler, Kassal and Smith, JJ.