Opinion
December 17, 1976
Appeal from the Erie Supreme Court.
Present — Marsh, P.J., Moule, Cardamone, Simons and Mahoney, JJ.
Order unanimously reversed, without costs, and motion granted in accordance with memorandum, Simons, J., not participating. Memorandum: Disposition of controversies on the merits is favored and in furtherance of that policy a default will be vacated upon a proper showing of a meritorious defense, an excusable default and the absence of willfulness (Nomako v Ashton, 22 A.D.2d 683). Where a party's default has culminated in the implementation of a prior conditional order by entry of a default judgment, the determinative criteria of willful default has been held to require a showing of clear, deliberate or contumacious indifference (Balsam v Nicolosi Bldg. Co., 36 A.D.2d 533, 534; Cinelli v Radcliffe, 35 A.D.2d 829; Levine v Barricini, 278 App. Div. 801, mot for lv to rearg den 278 App. Div. 905). Upon this record we are not persuaded that a sufficient showing exists to sustain the contention that defendant exhibited such willful contumacious indifference by failing to comply with the conditional order, entered in its consent, which directed it to appear for pretrial examination. Sufficient showing having been made of intervening new facts, trial court's denial of defendant's motion for it to renew consideration of plaintiff's prior motion, which resulted in the conditional consent entered on April 1, 1975, was error. Therefore, the default judgment entered June 15, 1975 is vacated upon condition that defendant comply with the direction for its appearance and production of noticed documents as provided in the order of April 1, 1975 at a time and place specified in a written 10-day notice to be served by plaintiff or at such date, time and place as may be mutually agreed upon between the parties.