Opinion
July 10, 1967
Order of the Supreme Court, Kings County, dated December 13, 1966, which denied defendant's motion for reconsideration, on additional papers, of his prior motion to vacate a default judgment reversed, with $50 costs and disbursements to respondents; and defendant's motion for vacatur granted, on condition that he pay respondents the costs of the action to date and said $50 costs and disbursements of this appeal, upon or prior to service of his answer to the complaint. Defendant's time to serve his answer is extended until 20 days after entry of the order hereon. The record does not sufficiently support the conclusion that the default herein was willful; the excuse that appellant's attorney failed to act and is responsible for the delays and default is plausible; and the issues proffered certainly require a disposition on the merits, which is favored (see Hensey Props. v. Lamagna, 23 A.D.2d 742; Nomako v. Ashton, 22 A.D.2d 683; Jensen v. Backman, 246 App. Div. 741). Christ, Acting P.J., Brennan, Hopkins, Munder and Nolan, JJ., concur.