Opinion
November 24, 1987
Appeal from the Supreme Court, Bronx County (Irwin M. Silbowitz, J.).
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.