Opinion
May 28, 1991
Appeal from the Supreme Court, Westchester County (Gagliardi, J.H.O.).
Ordered that the order is affirmed, with costs, and the time to conduct the examination before trial is extended until 30 days after service upon the defendants of a copy of this decision and order, with notice of entry; and it is further,
Ordered that the examination before trial shall be conducted at a time and place to be set in a written notice of at least 10 days to be served by the plaintiffs upon the defendants, or at such time and place as the parties may agree.
We find that the Supreme Court properly exercised its discretion in vacating the defendants' default pursuant to CPLR 5015 (a) (1). The default was unintentional and resulted from law office failure on the part of the defendants' former attorney, who was later suspended from the practice of law (see, CPLR 2005; see, Searing v Anand, 127 A.D.2d 582, 583). In addition, we conclude that there are meritorious defenses to the plaintiffs' claims, and that, under the circumstances of this case, it was not an improvident exercise of discretion to deny the application to have the judgment stand as security pending trial (cf., A.G. Serv. Co. v Interboro Contr., 64 A.D.2d 880). Thompson, J.P., Eiber, Miller and Ritter, JJ., concur.