Opinion
515N
March 18, 2003.
Order, Supreme Court, Bronx County (Gerald Esposito, J.), entered January 8, 2002, which, to the extent appealed from, granted defendants' motion to vacate their default in appearance and deemed their answer timely served, unanimously modified, on the facts and in the exercise of discretion, to condition the relief afforded defendants upon their stipulation, within 20 days of service of a copy of this order, with notice of entry, to the court's jurisdiction over their persons, and withdrawal of their sixth affirmative defense with prejudice, and otherwise affirmed, without costs.
Brian J. Isaac, for plaintiff-appellant.
Sara Luca Salvi, for defendants-respondents.
Before: Mazzarelli, J.P., Andrias, Saxe, Ellerin, Williams, JJ.
While we agree with the motion court that it is preferable that this matter be decided on its merits (see Cappel v. RKO Stanley Warner Theaters, 61 A.D.2d 936, 937; see also Matter of Murray v. Matusiak, 247 A.D.2d 303, 304), under the circumstances presented, we find it appropriate to condition the relief afforded (see CPLR 5015[a]) upon defendants' agreement to submit to the court's jurisdiction.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.