Kantz v. Melnicki (38 A.D.2d 695, 1972)

Order, Supreme Court, New York County, entered on June 17, 1971, affirmed, without costs and without disbursements. No opinion. Concur—Stevens, P. J., Kupferman, Murphy and Capozzoli, JJ.; McGivern, J., dissents in the following memorandum: Although the conduct of appellant and counsel is almost wholly inexplicable, I think it sufficient if we but refuse to vacate the defendant’s default in respect of the examination before trial. And, although I am alive to the firm policy of this court not to condone neglect on the part of counsel, I think an uncontested assessment, resulting in the substantial sum of over $155,000, could, in a provident exercise of discretion, be vacated on terms significant enough to serve as a caution to future parties and their attorneys, (Keenan v. Waring, 12 A D 2d 601.) Thus, I would vacate the default on the assessment of damages, upon tender and payment of $250 additional costs, together with payment of the costs and disbursements taxable to date, including this appeal, to be charged to and payable by the defendant and his attorney.