Opinion
December 6, 1982
Appeal by defendant, as limited by his brief, from so much of an order of the Supreme Court, Westchester County (Beisheim, J.), dated September 21, 1981, as, upon vacating a default judgment taken against him, imposed costs as a condition of the vacatur. Order reversed insofar as appealed from, with $50 costs and disbursements, and the provision imposing costs is deleted. Litigants and their attorneys have a right to rely upon the observance of court rules which provide for the postponement of a trial based on the actual engagement of counsel in another court (see Rules of Practice, Supreme Court, Westchester County, 22 NYCRR 780.5 [a]; Bock v Bock, 132 App. Div. 921; 7 Carmody-Wait 2d, N Y Prac, § 50:43). Hence, it was an abuse of discretion for the trial court to have imposed costs on the defendant as a condition for vacating the default caused by his attorney's actual engagement at another trial (see New York Omnibus Corp. v Associated Transport, 76 N.Y.S.2d 602; Milton Holding Corp. v Gross, 193 N.Y.S 75). Lazer, J.P., Mangano, Gibbons and Gulotta, JJ., concur.