Opinion
March 7, 1985
Appeal from the Supreme Court, New York County (Gammerman, J.).
In a personal injury action defendant appeals from an order of the Supreme Court denying its motion pursuant to CPLR 5015 (a) to vacate a default judgment rendered against it, which followed the dismissal of defendant's answer because of its failure to comply with a conditional order directing such dismissal if defendant did not within a stated period of time produce certain documents demanded in a notice for discovery and inspection.
In denying the motion to vacate the judgment, the court did so on the quite reasonable ground that the motion was more appropriately addressed to the Judge who had entered the conditional order dismissing the answer, and did so without prejudice to a motion addressed to that Judge. Notwithstanding the defendant's failure to pursue the course appropriately suggested, we think it proper under all the circumstances, in light of the time that has now elapsed, to address the merits of the motion.
So considered, it is apparent that the default was an inadvertent and excusable one, the result of the omission of a departing attorney from defendant's law firm adequately to communicate to his successor the procedural status of the conditional order; that the period of noncompliance was brief; and that no prejudice to the plaintiff resulted. In addition, the affidavits submitted clearly present a substantial issue as to the merits of the lawsuit.
Concur — Sandler, J.P., Asch, Fein and Kassal, JJ.