Ostergard v. Carminati

• Decision Date: 31 July 1978
• Citation: 407 N.Y.S.2d 559,64 A.D.2d 696
• Parties: Milton OSTERGARD et al., Respondents, v. Louis CARMINATI et al., Defendants, and William Jacobs, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 559

407 N.Y.S.2d 559

64 A.D.2d 696

Milton OSTERGARD et al., Respondents, v. Louis CARMINATI et al., Defendants, and William Jacobs, Appellant.

Supreme Court, Appellate Division, Second Department.

July 31, 1978.

J. Robert Morris, New York City (Joseph D. Ahearn, New York City, of counsel), for appellant.

York M. Iguchi, Huntington (Maxwell D. Weinstein, Huntington, of counsel), for respondents.

Before HOPKINS, J. P., and DAMIANI, TITONE and RABIN, JJ.

MEMORANDUM BY THE COURT.

In a negligence action to recover damages for personal injuries, etc., defendant William Jacobs appeals from so much of an order of the Supreme Court, Suffolk County, dated December 9, 1977, as denied his motion to open his default and vacate the court's decision upon inquest finding him liable for negligence.

Order reversed insofar as appealed from, without costs or disbursements, and motion granted, on condition that appellant's attorney pay $750 to plaintiffs within 20 days after entry of the order made hereon; in the event that the condition is not complied with, then order affirmed insofar as appealed from, with $50 costs and disbursements. Appellant's time to answer is extended until 10 days after his attorney complies with the aforesaid condition.

In cases such as this, where the failure to permit a defaulting defendant to vacate his default and to have his day in court would work an unduly harsh result, and where the actual fault belongs to the defendant's counsel and the opposing party will not be unduly prejudiced, it is appropriate that the default be opened with costs against the offending attorney personally, so that the rights of the parties may be determined on the merits (see Siegel v. Tamarack Lodge Hotel, 46 A.D.2d 684, 360 N.Y.S.2d 78; Cohen v. Tucker, 44 A.D.2d 706, 354 N.Y.S.2d 691; Moran v. Rynar, 39 A.D.2d 718, 332 N.Y.S.2d 138).