Opinion
April 2, 1984
In an action to recover damages for infliction of mental and emotional shock, distress and humiliation arising from the installation of an improper tombstone, defendant Twin City Custom Sandblast, Inc., appeals from an order of the Supreme Court, Rockland County (Slifkin, J.), dated March 25, 1983, which granted plaintiffs' motion for leave to enter a default judgment against it and denied its cross motion to vacate its default. ¶ Order reversed, as a matter of discretion, without costs or disbursements, motion denied, cross motion granted, and appellant's answer is deemed served on condition that the attorneys for appellant personally pay to the plaintiffs $500 within 20 days after service upon them of a copy of the order to be made hereon, with notice of entry; in the event the condition is not complied with, order affirmed, with costs. ¶ In light of the circumstances and the legislation which modified the Barasch-Eaton rule ( Barasch v Micucci, 49 N.Y.2d 594; Eaton v Equitable Life Assur. Soc., 56 N.Y.2d 900; see CPLR 2005, 3012, subd [d]; L 1983, ch 318), we exercise our discretion to relieve appellant of its default. However, we have imposed an appropriate sanction on appellant's attorneys (see Mineroff v Macy's Co., 97 A.D.2d 535; Robinson v USAA Cas. Ins. Co., 97 A.D.2d 837). Titone, J.P., O'Connor, Brown and Eiber, JJ., concur.