Opinion
September 18, 1980
Order, Supreme Court, New York County, entered December 10, 1979, granting plaintiffs' motion for a default judgment, is unanimously reversed, without costs on appeal, on the law and the facts, and in the exercise of discretion, and said motion for default judgment is denied on condition that defendants-appellants shall pay to plaintiffs the sum of $300 costs within 20 days after service of a copy of the order determining this appeal; and in the event that such payment is not made within such time, the order appealed from is unanimously affirmed, without costs on appeal. Appeal from order of the Supreme Court, New York County, entered January 8, 1980, denying defendants-appellants' motion for an order vacating their default judgment is dismissed, without costs, as academic in view of the foregoing determination. Defendants-appellants' default in answering was for the most part an inadvertence lasting a relatively short time and did not result in any prejudice to plaintiffs. A final judgment should not be granted on the basis of such an inadvertence where it appears that appellants have at least an arguable defense. It was at all times clear to plaintiffs, and all other parties, that defendants-appellants did not intend to default and were actively contesting the action. However, some sanction should be imposed on defendants-appellants for their failure to make timely service of the answer which resulted in the motions and orders now under review (even though probably all of this work could have been avoided if plaintiffs' attorneys had bothered to make a telephone call to defendants' attorneys before making the motion for default judgment), and accordingly we have imposed the condition of $300 costs. In view of the failure of respondents to comply with the requirement of record references in their brief, no costs on appeal will be allowed.
Concur — Murphy, P.J., Kupferman, Birns, Markewich and Silverman, JJ.