Weissblum v. Mostafzafan Foundation
472 N.Y.S.2d 1
N.Y. App. Div.
1984
Check Treatment

Order of the Supreme Court, New York County (Andrew Tyler, J.), entered August 20, 1981, granting defendant’s motion to vacate its default unanimously affirmed, without costs. This is an action for real estate brokerage commissions. It was commenced on March 4,1981 by service of a summons and complaint. Defendant forwarded the papers to its attorney who misfiled them. Shortly after the time to answer had expired the papers were located. Defendant’s attorney immediately communicated with plaintiffs’ counsel and requested an extension of time to answer. Some period of time elapsed between defendant’s request and the plaintiffs’ decision not to accept a late answer. In the interim, default was entered. Defendant thereupon moved to vacate the default. Special Term granted the motion. We affirmed by a divided court (90 AD2d 741). Upon appeal to the Court of Appeals that court reversed (59 NY2d 815) for the reason stated by the dissenter in this court. Some 14 days after the determination of the Court of Appeals, chapter 318 of the Laws of 1983 became effective. Thus the newly enacted CPLR 2005 empowered the court to “exercis[e] its discretion in the interest of justice to excuse delay or default resulting from law office failure” and made the act applicable to all actions and proceedings still pending. Since final judgment had not yet been entered the Court of Appeals granted reargument, vacated its prior determination and remitted the matter to us for consideration in light of its memorandum (60 NY2d 637). We are of the opinion that inasmuch as the period of default was but 28 days, that plaintiffs suffered no prejudice as a result thereof and that there is merit to the defense urged by the defendant, it was well within the discretion of Special Term to vacate the default and to extend defendant’s time to answer (CPLR 3012, subd [d]). Accordingly, we affirm the order of Special Term. Concur — Murphy, P. J., Carro, Bloom and Lynch, JJ.