Kahn v. Stamp
| Decision Date | 15 April 1976 |
| Citation | 382 N.Y.S.2d 199,52 A.D.2d 748 |
| Parties | Meyer A. KAHN, Respondent, v. Julian STAMP et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
Jaeckle, Fleischmann & Mugel, John Walsh, Buffalo, for appellants.
Saperston Wiltse, Day & Wilson, Bruce D. Drucker, Buffalo, for respondent.
Before MARSH, P.J., and MOULE, CARDAMONE, GOLDMAN and WITMER, JJ.
This action, to recover interest payments alleged due from a retirement plan, was commenced by service of a summons and complaint in July 1974. An answer was interposed denying the allegations in the complaint and pleading affirmative defenses of estoppel, waiver and payment. On October 16, 1974 plaintiff served a demand for written interrogatories upon defendants and on December 16, 1974, upon defendants' failure to comply with the demand, a 20-day conditional order of preclusion was obtained. The order provided for the entry of default judgment upon defendants' failure to furnish the interrogatories. It was served on December 23, 1974. Thereafter, on January 16, 1975 plaintiff, fearing possible dissipation of the fund assets, moved for a preliminary injunction. Defendants opposed the motion and posted bond in the amount of $7,000.00 to secure plaintiff's claim. On March 11, 1975 plaintiff filed a note of issue and statement of readiness and on April 18, 1975 plaintiff entered a default judgment based upon defendants' noncompliance with the December 16, 1974 conditional preclusion order. Defendants moved to vacate the default on the grounds that its attorneys overlooked the necessity for serving the interrogatories in the process of opposing the application for an injunction, and that plaintiff had waived compliance when the note of issue and statement of readiness was filed. That motion was denied and defendants have appealed.
Under these circumstances we think it was error to deny defendants' motion to vacate the default. Ordinarily, law office failure is an insufficient reason, by itself, to excuse a default (McIntire Associates, Inc. v. Glens Falls Insurance Co., 41 A.D.2d 692, 342 N.Y.S.2d 819; Renne v. Roven, 29 A.D.2d 866, 288 N.Y.S.2d 415; Sortino v. Fisher, 20 A.D.2d 25, 245 N.Y.S.2d 186). However, its existence does not Ipso facto prevent the court from exercising its broad discretionary power to relieve a party of default if the interests of justice would be furthered by such action (Batista v. St. Luke's Hospital, 46 A.D.2d 806, 361 N.Y.S.2d 190). In exercising such discretion court should undertake a balanced consideration...
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