Krystofic v. Rapisardi

Jul 8, 1985
Versions:112 A.D.2d 196
491 N.Y.S.2d 70
1985 N.Y. App. Div. LEXIS 55946

In an action to recover damages for personal injuries, etc., defendants Carmela and Joseph Rapisardi appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Baisley, J.), dated April 6, 1984, as granted plaintiffs’ cross motion to vacate an order of the same court (Tanenbaum, J.), dated October 17, 1983, granting appellants a conditional order of preclusion, and another order of the same court (McCarthy, J.), dated January 9, 1984, granting appellants summary judgment for noncompliance with the conditional order of preclusion, on condition that, within 30 days, plaintiffs comply with the October 17, 1983 conditional order of preclusion, and their attorneys personally pay appellants’ attorneys $750.

Order affirmed, insofar as appealed from, with costs.

Special Term did not abuse its discretion in finding an excusable default and a meritorious claim on these facts. The delay here was due to a misunderstanding in adjourning appellants’ motion for summary judgment and a difficulty in obtaining medical evidence. Public policy favors a determination on the merits (Stark v Marine Power & Light Co., 99 AD2d 753), and the sound discretion of Special Term is to be given some latitude in determining what is an excusable default (Picotte Realty v Aragona, 87 AD2d 955). Therefore, the order of Special Term is affirmed, insofar as appealed from. Mollen, P. J., Bracken, Niehoff and Rubin, JJ., concur.