Opinion
May 23, 1961
Present — Bergan, P.J., Coon, Gibson, Reynolds and Taylor, JJ.
Plaintiff appeals from an order of Special Term which granted defendants' motion to set aside a default judgment with leave to serve an answer to the verified complaint. Plaintiff challenges this order as an improper exercise of discretion by the court below. The action was commenced in Supreme Court, Albany County, by service of summons August 7, 1959. The defendants filed a notice of appearance by their attorney, William Perry, on August 17, 1959. Although this notice contained a demand for a copy of the complaint, none was served until late October, 1959. On November 4, 1959, approximately two weeks after the complaint was served and before any service of an answer, plaintiff filed a note of issue for the December Trial Term. No answer was ever interposed. Thereafter, plaintiff avers, a notice was mailed by the Clerk of the court to both attorneys informing them that the case would be reached May 2, 1960. Defendants' attorney alleges that through "inadvertence" he failed to note the matter on his calendar and default judgment was entered on May 4, 1960. The order opening this default was granted August 12, 1960. In our view, on this record, Special Term could find in his discretion that the default was excusable and further that there may be a meritorious defense. The papers indicate a possible defense of payment and defendants' counsel swears that he believes there is a defense on the merits. Order unanimously affirmed, without costs.