Opinion
September 24, 1992
Appeal from the Supreme Court, New York County (William J. Davis, J.).
When prior counsel refused to turn over the case file to successor counsel in a fee dispute with plaintiffs, and the trial court refused a postponement, new counsel withdrew and plaintiffs were unable to meet the scheduled trial date. Default was entered on the call of that calendar, because the non-English speaking individual plaintiffs were in Italy at the time — one of them unable to travel due to a health problem. Plaintiffs claim they never received notice of the inquest ordered on the counterclaims. Plaintiffs were precluded from appeal as of right because of the default (CPLR 5511).
The trial court erred in conditioning plaintiffs' motion to vacate default on prior judicial approval for making such a motion (Matter of Hochberg v Davis, 171 A.D.2d 192, amended on rearg 179 A.D.2d 372). The court held a hearing and denied the application in a written order (cf., Matter of Grisi v Shainswit, 119 A.D.2d 418), ruling that present counsel had failed to offer any excuse for default or any meritorious defense to the counterclaims. We note from the affidavit in support of plaintiffs' rejected motion, contained in the record, that plaintiffs did indeed proffer an excuse for the default and a purportedly meritorious defense. These should have been considered by the court.
Concur — Murphy, P.J., Carro, Milonas and Wallach, JJ.