BONG HAG MA v. BONG SIG MA (1998)

Supreme Court, Appellate Division, First Department, New York.

BONG HAG MA, et al., Plaintiffs-Appellants, v. BONG SIG MA, et al., Defendants-Respondents.

Decided: October 01, 1998

Before MILONAS, J.P., and ROSENBERGER, ELLERIN and ANDRIAS, JJ.

Jin Han, for plaintiffs-appellants. Robert M. Trien, for defendants-respondents.

Order, Supreme Court, New York County (Lewis Friedman, J.), entered on or about November 10, 1997, which granted plaintiffs' motion for a default judgment unless, among other things, defendants paid $500 to plaintiffs' attorney, unanimously affirmed, without costs.

Although the motion court found that defendants offered “no realistic plausible excuse” for their failure to timely answer the amended complaint, it properly gave defendants an opportunity to open the default given a meritorious defense, as indicated by the denial of plaintiff's motion for a preliminary injunction, defendants' vigorous defense of the action, which included a largely successful motion to dismiss the amended complaint and demands for documents during the period of delay, and plaintiffs' failure to demonstrate any prejudice as a result of the three-month delay (see, Pansey v. RKO Gen., 102 A.D.2d 762, 477 N.Y.S.2d 18; Muney Design v. Roscoe Mgt. Co., 97 A.D.2d 712, 468 N.Y.S.2d 348). Conditioning vacatur of this default upon defendants' payment of $500 to plaintiffs' attorney was an appropriate exercise of discretion.

MEMORANDUM DECISION.

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