Opinion
June 6, 1994
Appeal from the Supreme Court, Kings County (Hutcherson, J.).
Ordered that the order is affirmed insofar as appealed from, without costs and disbursements, upon the condition that the plaintiffs' attorneys personally pay the defendant's attorneys the sum of $1,000 within 20 days after service upon the plaintiffs' attorneys of a copy of this decision and order, with notice of entry; and it is further,
Ordered that in the event the plaintiffs' attorneys fail to pay the $1,000, the plaintiffs are granted an additional 20 days after service upon them of a copy of this decision and order, with notice of entry, to pay the defendant's attorneys the sum of $1,000; and it is further,
Ordered that in the event that the $1,000 still remains unpaid 20 days after service upon the plaintiffs' attorneys and 20 days after service upon the plaintiffs of a copy of this decision and order, with notice of entry, then the order is reversed insofar as appealed from, with costs to the defendant payable by the plaintiffs, and the plaintiffs' motion to vacate the order dated April 6, 1992, dismissing the complaint is denied.
We find that the Supreme Court properly granted the plaintiffs' motion to vacate their default in opposing the defendant's cross motion to dismiss the complaint. The plaintiffs promptly moved to vacate their default, and have demonstrated a good faith intent to prosecute the action (see, First Fed. Sav. Loan Assn. v O'Daly, 201 A.D.2d 532). Moreover, there is no indication that the defendant was prejudiced by the delay, and the plaintiffs sufficiently demonstrated that their cause of action may have merit (see, Salch v. Paratore, 60 N.Y.2d 851). Under these circumstances, and in view of the public policy in favor of resolving cases on their merits, we decline to disturb the court's exercise of its discretion (see, ASC Mgt. Corp. v. Utica Mut. Ins. Co., 203 A.D.2d 312; Albin v. First Nationwide Network Mtge. Co., 188 A.D.2d 575; Richardson v Martorano, 184 A.D.2d 557).
However, we find that the imposition of a monetary sanction upon the plaintiffs' attorneys is appropriate (see, First Fed. Sav. Loan Assn. v. O'Daly, supra; Albin v. First Nationwide Network Mtge. Co., supra).
We have examined the defendant's remaining contentions, and find that they are without merit. O'Brien, J.P., Ritter, Santucci and Krausman, JJ., concur.