Diversified Development Corporation et al., Respondents, v. Edward R. Stavitsky et al., Appellants, and Inverness Overseas Corporation et al., Defendants

Diversified Development Corporation et al., Respondents, v. Edward R. Stavitsky et al., Appellants, and Inverness Overseas Corporation et al., Defendants. [MAJORITY] Order, Supreme Court, New York County, entered on July 16, 1971, denying the motion to vacate the default judgment, unanimously reversed, on the law and the facts and in the exercise of discretion, without costs and without disbursements, and the motion granted, on condition that the defendant, within 20 days of service upon him by respondents of a copy of the order entered herein, with notice of entry thereof, files a bond in the sum of $18,750 and pays $250 costs, and serves his answer and counterclaim. Upon defendant-appellant’s failure to comply with these conditions, within the time limited, the order appealed from is unanimously affirmed and respondents shall recover of appellant $40 costs and disbursements of this appeal. The summons and complaint in this action were served on November 5,1970. The defendant defaulted, in answering for over six weeks from the last extension of time granted by the plaintiff. The plaintiff moved on notice to enter a default judgment pursuant to CPLR 3215 which motion was granted on March 10,1971. Defendant moved to reargue this decision, and reargument was denied on April 14, 1971. An assessment of damages was held. Defendant moved a second time, with new counsel, to vacate the default judgment. On this second motion sufficient possibility of a meritorious defense was shown. The imposition of full punitive damages allowed under section 442-e of the Real Property Law is something which deserves a full plenary hearing on the merits, even absent a fully satisfactory explanation of the failure of defendant to. answer timely (cf. Sisdlcords do Brazil Ltd. v. Fiacao Brasüiera de 'Sisal, S.'j.'., 34 A D 2d 778)."- Under the circumstances, it was an improvident exercise tif discretion not- to vacate, the default judgment upon appropriate conditions. Appeal from the- order of the. Supreme Court, New York County, entered on April-14,. 1971, • • unanimously dismissed as academic, without costs and without .disbursements. Concur — Kupferman, J. P., Murphy, Lane and Steuer, JJ. ' . • (Republished)