Opinion
February 21, 1985
Appeal from the Supreme Court, New York County (Danzig, J.).
In our view the motion to vacate defendants' default was improvidently denied. The answer, ultimately rejected, was proffered only 12 days after the 10-day grace period provided for in Special Term's order conditionally vacating the default, during which period defendants timely tendered their $1,500 check in satisfaction of one of the terms of the conditional vacatur. Moreover, plaintiff's attorney accepted and cashed this check. Since payment of the $1,500 and service of an answer were to be simultaneous, the condition was a joint one and plaintiff may not accept the benefit of tender of the check while rejecting tender of the answer, even if tardy. Defendants' reason for not timely answering within the grace period was adequately explained and a meritorious defense shown. Plaintiff is unable to demonstrate prejudice. In such circumstances the default judgment should have been vacated.
Issue shall be deemed to have been joined on May 11, 1984, when defendants served their answer. The parties shall proceed accordingly.
Concur — Kupferman, J.P., Sullivan, Ross and Carro, JJ.