Opinion
October 2, 1972
In a breach of warranty action to recover damages for merchandise alleged to be unfit for the purpose for which it was sold, defendant appeals from an order of the Supreme Court, Kings County, dated April 21, 1972, which denied its motion to vacate its default in answering the complaint and permit it to interpose an answer. Order reversed, without costs, in the interests of justice and in the exercise of discretion, and motion granted, upon condition that appellant pay $100 costs to respondent at or before the time appellant serves its answer to the complaint. Appellant's time to serve its answer is extended until 20 days after entry of the order to be made hereon. In the event appellant fails to comply with the above-mentioned condition, the order is affirmed, with $10 costs and disbursements. In our opinion, the denial of the motion to vacate appellant's default was an improvident exercise of discretion since a meritorious defense was alleged and no prejudice to respondent was demonstrated. As a matter of policy, disposition of causes of action on their merits is strongly favored. Appellant's default was neither willful nor of its own making. Martuscello, Acting P.J., Shapiro, Gulotta, Brennan and Benjamin, JJ., concur.