Opinion
April 9, 1976
Appeal from the Monroe County Surrogate's Court.
Present — Moule, J.P., Mahoney, Dillon, Goldman and Witmer, JJ.
Order unanimously affirmed, without costs. Memorandum: The order vacating trial court's prior order and summary judgment granted appellants on respondents' default in attendance at a hearing scheduled by the court, of which respondents' counsel had no notice, was proper in all respects. The circumstances convincingly establish that the default resulting in entry of the order and judgment granted to appellants was not attributable to respondents and was clearly excusable, warranting vacatur relief accorded under CPLR 5015. Nor is appellants' contention of prejudice sustainable, rendering trial court's order of vacatur violative of the rule 5015 provision conditioning such order on "terms as may be just". Furthermore, courts have inherent power in addition to that granted in the CPLR (see SCPA 102) to open judgments in the interest of justice (Ladd v Stevenson, 112 N.Y. 325, 332; Michaud v Loblaws, Inc., 36 A.D.2d 1013, 1014; Matter of Mento, 33 A.D.2d 650, 651). Lastly, the vacated judgment herein, resulting from appellants' CPLR 3212 application, is no less vulnerable to vacatur relief than a judgment culminating from other procedural genesis (Morabito v Champion Swimming Pool Corp., 18 A.D.2d 706, 707).