Bayer v. Domino Media, Inc.

• Decision Date: 23 February 1989
• Citation: 538 N.Y.S.2d 11,147 A.D.2d 413
• Parties: Richard BAYER, Plaintiff-Respondent, v. DOMINO MEDIA, INC., et al., Defendants-Appellants, and Media Sound, Inc., Defendant.
• Court: New York Supreme Court — Appellate Division

Page 11

538 N.Y.S.2d 11

147 A.D.2d 413

Richard BAYER, Plaintiff-Respondent, v.DOMINO MEDIA, INC., et al., Defendants-Appellants and Media Sound, Inc., Defendant.

Supreme Court, Appellate Division First Department.

Feb. 23, 1989.

M.M. Terry, New York City, for defendants-appellants.

Before SULLIVAN, J.P., and ASCH, KASSAL and ELLERIN, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Edith Miller, J.) entered January 19, 1988, which denied the motion of the defendants-appellants to vacate the default judgment entered against them, unanimously reversed, on the law, the facts, and in the exercise of discretion, the default judgment is vacated, and the defendants-appellants are directed to serve their answers within 20 days of service of a copy of this Court's order, without costs.

Counsel for the defendants attributes his delay in answering the complaint in this commercial matter to a backlog of transferred files during the dissolution of his small law firm, and also to his inability to give prompt attention to the matter in the aftermath of chemotherapy treatments he was enduring in treatment of an illness.

The IAS Court deemed these excuses to be "law office failure" and denied defendants' motion to vacate the default, relying on the Barasch/ Eaton rule that law office failure is insufficient to excuse a default.(Barasch v. Micucci, 49 N.Y.2d 594, 427 N.Y.S.2d 732, 404 N.E.2d 1275;Eaton v. Equitable Life Assurance Socy., 56 N.Y.2d 900, 453 N.Y.S.2d 404, 438...