Karen Marshall v. Gordon Marshall

In a matrimonial action, in which a hearing had been directed to determine the intent of the parties in entering into a stipulation which was incorporated into a judgment of divorce (Marshall v Marshall, 52 A.D.2d 841), defendant appeals from an order of the Supreme Court, Westchester County, dated February 8, 1978, which denied his motion to vacate his default in appearing for the hearing. Order reversed, without costs or disbursements, and motion granted, on condition that defendant pay $350 to the plaintiff within 20 days after entry of the order to be made hereon; in the event such condition is not complied with, then order affirmed, without costs or disbursements. In our opinion, the denial of the motion to vacate defendant's default constituted an improvident exercise of discretion. The record establishes that the failure of defendant's attorney to appear at the hearing was not willful, since he was involved in the trial of another action on the same date. The motion to open the default was promptly made and no prejudice to plaintiff was shown. As a matter of policy, disposition of causes of action on their merits is strongly favored (Colgar Enterprises v Di Giaimo, 41 A.D.2d 654; Andrea Raab Corp. v Goodman Chem. N. Y. Corp., 40 A.D.2d 673). However, in granting defendant's motion in the interest of justice, this court does not condone the failure of his attorney to promptly inform the court prior to the hearing of his engagement in the trial of another action, and his inability to appear on the date of the hearing. Under the circumstances, the defendant should pay the sum of $350 to plaintiff as a condition to the opening of the default (see Polytemp, Inc. v Sell, 59 A.D.2d 938; Sotcheff v French, 59 A.D.2d 777).