Opinion
April 5, 1962
Appeal from the Monroe Special Term.
Present — Williams, P.J., Goldman, Halpern, McClusky and Henry, JJ.
Order unanimously reversed, with $25 costs and disbursements and defendant's motion denied, with $10 costs. Plaintiff's cross motion treated as academic. Memorandum: This case presents a picture of inordinate and inexcusable delay and lack of diligence and co-operation on the part of attorney for the Town of Mendon (not counsel for defendants on the present appeal). About 18 months after the summons and complaint had been served the defendants had neither answered nor appeared in the action. Notices of application for judgment given to defendants by plaintiff's lawyer apparently were not heeded, and the entry of judgment was not opposed. The many acts of courtesy of the plaintiff's attorney extended beyond legal procedural necessities were in no way reciprocated. Instead they were met with procrastination, disregard and almost disdain. Highly important statements in the affidavits submitted by plaintiff are not controverted. For instance, plaintiff's attorney claimed that defendants' attorney promised to pay the judgment if execution would be withheld and told him by telephone that a certified check was in the mail, but it was never received. Defendants' attorney does not deny this statement. No reasonable explanation of defendants' attorney's inactivities was given. His neglect was not the result of mistake, inadvertence or surprise, but seemed to be almost deliberate. It may not be excused.