Exact Tool and Die Corporation, Respondent, v. Herman Bittlingmaier, Appellant

Exact Tool and Die Corporation, Respondent, v Herman Bittlingmaier, Appellant. [MAJORITY] — Order unanimously reversed, without costs, and motion denied. Memorandum: It was an improvident exercise of Special Term’s discretion to grant plaintiff a default against defendant where defendant’s attorney had effected service of defendant’s answer two days late and appeared before Special Term on defendant’s behalf in opposition to the motion for a default. The complaint was served on January 16, 1978, service of the answer was due 20 days thereafter (CPLR 3012, subd [a]). By stipulation that date was extended to February 15, 1978. Defendant’s verified answer dated February 16 was served on plaintiff’s attorneys on February 17. The opposition to plaintiff’s motion for a default judgment should have been treated by Special Term, as urged by defendant, as a motion to open the default in pleading (CPLR 2004). So considered, the motion should have been granted since an opportunity to defend and have one’s day in court on the merits is favored as in the interest of justice (Michaud v Loblaws, Inc., 36 AD2d 1013, 1014). (Appeal from order of Monroe Supreme Court — default judgment.) Present — Dillon, P. J., Cardamone, Schnepp, Doerr and Moule, JJ.