Opinion
January 17, 1978
Order, Supreme Court, New York County, entered October 8, 1976, insofar as it grants defendants William P. Flynn and Jane Flynn's motion to vacate the default judgment and to serve answer, on condition that such defendants pay $50 to the attorneys for plaintiff, is unanimously modified, on the law and on the facts, and in the exercise of discretion, so as to grant said motion to vacate the default judgment on condition that there be paid to the plaintiff by the attorney for the defendants personally the sum of $250 within 20 days after service of a copy of the order hereon, by the plaintiff upon the defendant and that said defendants pay the costs and disbursements of this appeal to plaintiff within 20 days after taxation thereof and service of a copy thereof on their attorney, and on compliance with such conditions, the order, as modified, is affirmed. In the event of failure to comply timely with said conditions, so much of the order as grants the motion to vacate the default judgment is reversed and the motion to vacate the default judgment is denied, with costs. On the cross appeal by said defendants from so much of the order as denied said defendants' motion to dismiss the complaint on jurisdictional grounds, that part of the order is unanimously affirmed. One bill of $40 costs and disbursements on this appeal is awarded to plaintiff as against said defendants. While the courts favor disposition on the merits rather than on default, and the short period between the default judgment and the motion to vacate it has apparently not prejudiced plaintiff, the cavalier attitude of the defendants' attorney to the obligation to make some response to the complaint, and the disregard of that obligation, require more severe sanction and terms than those imposed by Special Term.
Concur — Lupiano, J.P., Birns, Silverman and Evans, JJ.