Opinion
January 10, 1984
Order of the Supreme Court, New York County (Robert E. White, J.), entered June 6, 1983, which denied defendant's motion to compel plaintiff's acceptance of a late answer, or in the alternative, to extend defendant's time to answer, and the order of the Supreme Court, New York County (Robert E. White, J.), entered June 16, 1983, which, in effect, deemed defendant's motion for an order opening the default judgment and for related relief, as one for renewal, granted said renewal and denied the motion in its entirety, are both reversed, on the law and facts, in the exercise of discretion, without costs, and the motion by defendant to vacate the default judgment and his default in answering, is granted, on the condition that defendant's counsel, Robert E. Meshel, personally pay $500 to plaintiff within 15 days after entry of the order herein. Upon failure to comply with the aforesaid condition, the orders appealed from are affirmed, without costs. This is a legal malpractice action commenced by plaintiff against defendant with respect to the latter's representation of plaintiff on a criminal charge. While defendant did default in answering, the delay in answering was not unduly long and the action was clearly not abandoned or neglected by defendant. In addition, defendant submitted an affidavit indicating that he possessed a meritorious defense. Under the circumstances, we deem vacatur of the default, upon the condition defendant's counsel personally pay plaintiff the sum of $500 for inconvenience and delay suffered by him to be appropriate.
Concur — Sandler, J.P., Asch, Silverman and Fein, JJ.
Milonas, J., dissents and would affirm for the reasons stated by Robert E. White, J.