This motion, by defendants, brought on by order to show cause, for an order:

(a)granting renewal and reargument of an Order issued by Justice John DiNoto on May 25, 2000 and reinstating defendants' answer, which

was stricken by the Appellate Division pursuant to an Order dated April 30, 2001, on the grounds that:

(i)Justice DiNoto properly vacated a default Order after determining that defendants made a good faith effort to comply with plaintiffs' Notice for Discovery and Inspection (the "Document Demand") and demonstrated a reasonable excuse for the delay in responding to the Document Demand;

(ii)plaintiffs' attorney's acceptance of a $1,000 check tendered by defendants' counsel, pursuant to Justice DiNoto's May 25, 2000 Order, constituted a waiver of plaintiffs' right to appeal the May 25, 2000 Order; [*2]

(iii)evidence, through the affirmations and affidavits submitted herewith, establishes that defendants have meritorious defenses to plaintiffs' claims; and

(iv)newly discovered evidence regarding the mental illness affecting Charles Cunningham, defendants' former attorney who previously had the sole responsibility for the defense of this

action, provides a reasonable excuse for the delay in responding to the Document Demand;

(b)enjoining the plaintiffs, pending the hearing and determination of this motion, from entering a judgment against the defendants or otherwise enforcing the Second Department's Order dated April 30, 2001; and

(c)granting such other and further relief as the Court deems just,

proper and equitable,

is determined as hereinafter set forth.

Factually, this action arises out of a series of employee layoffs accomplished by the defendant County of Nassau (hereinafter "County") in 1992. The action was commenced in June, 1992, to determine whether the County defendants improperly terminated or demoted the employee plaintiffs by abolishing their titles in violation of State law. Thereafter, the

parties agreed to hold this action in abeyance pending the outcome of an appeal to the Court of Appeals in an action entitled Torre v County of Nassau. A decision was duly rendered by the Court of Appeals in the Torre matter on October 24, 1995. That decision determined that, inter alia, the abolition of positions of employment that have been created by the legislative act of the Nassau County Board of Supervisors can only be accomplished by that same legislative body. (see, Torre v County of Nassau, et al, 86 NY2d 421, 633 NYS2d 465, 1995).

Subsequently, settlement discussions were held, to no avail, and the plaintiffs then moved to amend their complaint: to add a claim based on the doctrine of "legislative equivalency"; to preliminarily enjoin the defendants from allowing a "preferred list"; or to grant class action status. Justice DiNoto granted the inclusion of the claim of legislative equivalency based on the Torre decision (supra ), granted the requested injunctive relief, and denied the request for class action status based upon the determination that

"there are numerous differences between the

claims of those who were laid off and whose

claims may be controlled by Torre, supra , and

those who were simply demoted. Further, it

is alleged that some members may have been

only provisional or probationary employees and

thus would have no legal claims herein. There [*3]

are also varied civil service classifications - i.e.,

competitive, non-competitive, exempt, etc. amongst

the members of the proposed class - which militate

against the granting of the relief sought herein".

A subsequent appeal by plaintiffs of that branch of Justice DiNoto's denial of the motion for class action status was denied. The Appellate Division, 2nd Department determined that "[t]he plaintiffs' conclusory allegations were insufficient to establish that the statutory

prerequisites for class certification had been met (citations omitted). There were numerous differences among the members of the proposed class and no evidentiary support for the proposition that their positions were improperly abolished by the same method described in Matter of Torre v County of Nassau (supra )". (Weitzenberg v Nassau County Dept. Of Parks, et al, 249 AD2d 538, 672 NYS2d 110, 111, 2nd Dept., 1998). A Notice for Discovery and Inspection dated February 2, 1999 was served by plaintiffs, upon the defendants, and was returnable March 1, 1999. No response was made, and a follow-up request was made by letter of March 9, 1999, and there being no response thereto, a motion was made, requesting the court to either strike the defendants' answer or compel discovery. Justice DiNoto, upon

submission of the motion on June 25, 1999, conditionally granted that application". . .unless the defendants, within ninety (90) days of service of a copy of this Order upon the attorneys for the defendants, completely and fully comply with the aforesaid Notice of the plaintiffs". (Order July 9, 1999). No response was made, and a further motion was made to strike the defendants' answer, returnable November 12, 1999, and adjourned various times, and finally submitted on March 15, 2000, with no opposition. On March 17, 2000, by memorandum decision, Justice DiNoto granted that motion to strike. The defendants then moved, by order to show cause dated March 31, 2000, to vacate the order to strike the answer, based on law office failure. Upon submission, Justice DiNoto granted the motion to vacate by Short Form Order dated May 25, 2000, with the provision that ". . .counsel for the defendants personally pays to counsel for the plaintiffs the costs and legal fees incurred in motion practice

concerning disclosure in the amount of $1,000.00 within twenty (20) days after service of a copy of this order upon counsel for the defendants". Upon appeal, the Appellate Division, 2nd Department reversed the May 25, 2000 order. In pertinent part, that order of April 30, 2001 states:

"Initially, we note that the defendants

failure to timely comply with the

conditional order of preclusion rendered

that order absolute (see, Kepple v Hill

Assocs., 275 AD2d 299; Tae Chaol Ha v

B.H.N.V. Realty Corp., 273 AD2d 458;

Alphonse v UBJ Inc., 266 AD2d 171).

"It is well settled that in order to be relieved

of a failure in complying with a conditional

order of preclusion, the moving party must [*4]

demonstrate a reasonable excuse for its

failure to comply and must show, in evidentiary

form from a party with personal knowledge of

the facts, that a meritorious cause of action or

defense exists" (First Fed. Sav. & Loan Assn.

of Rochester v 1220 Richmond Rd. Corp., 123

AD2d 418, 419; see, Carter v Hi Top Flower

Wholesale Corp., 255 AD2d 412). Moreover,

because they defaulted on the plaintiffs' motion to

strike their answer based on their failure to comply

with the conditional order of preclusion, the

defendants were required to demonstrate a

reasonable excuse for that default and a

meritorious defense (see, Burns v Casale, 276

AD2d 734; Roussodimou v Zafiriadis, 238

AD2d 568; Putney v Pearlman, 203 AD2d 333).

They failed on both accounts.

Nowhere in their motion papers did the defendants

address whether they have a meritorious defense to

the plaintiffs' action. Thus, the defendants' motion

to vacate their default should have been denied (see,

Contractors Cas. & Sur. Co. v 535 Broadhollow

Realty, 276 AD2d 737; Williams Elevator Co. v

Grafi, 277 AD2d 311). Moreover, the defendants'

excuse for failing to oppose the plaintiffs' motion,

law office failure due to defense counsel's heavy

schedule, was not reasonable (see, Kyriacopoulos v

Mendon Leasing Corp., 216 AD2d 532, 533; First

Fed. Sav. & Loan Assn. of Rochester v 1220

Richmond Rd. Corp., supra ; see also, Correa v

Ahn, 205 AD2d 575; Kolajo v City of New York,

248 AD2d 512)".

The defendants moved in the Appellate Division for renewal and reargument of its April 30, 2001 order on two grounds: that plaintiffs' counsel's acceptance of the $1,000 sanction constituted a waiver of plaintiffs' right to appeal the DiNoto May 25, 2000 order; and that the underlying default was solely the responsibility of Charles Cunningham, who was suffering a severe emotional illness (purportedly unknown to the defendants or the attorneys in his law firm).

The Appellate Division, Second Department, on August 31, 2001, issued an order which "ORDERED that the motion [to renew and reargue] is denied, without prejudice to the respondents [defendants] seeking relief in the Supreme Court". The instant motion, brought on [*5]by order to show cause was made on November 1, 2001, assigned to Justice Skelos, and upon several conferences and adjournments, was submitted, upon further reassignment to this Court.

The defendants assert that the Appellate Division's order of August 31, 2001 permits this Court to weigh, in this motion, ". . .plaintiffs' waiver of their right to appeal and Mr.

Cunningham's mental illness". (Mollen affirmation, ¶ 4), and upon consideration, this Court should conclude that, in fact, the plaintiffs waived their right to appeal; that a reasonable

excuse for the default and meritorious defense has been demonstrated, and the answer should be reinstated. The defendants urge this Court to consider that if the answer is stricken, it will be a miscarriage of justice because the defaults, missed court appearances and neglect of

discovery were solely due to an attorney who was mentally ill and unable to perform, and a denial of this motion would have widespread ramifications, i.e., a potential large judgment to be shouldered by taxpayers, jeopardy of a long-term relationship between the law firm and the client and the continued existence of a law firm and its employees. Counsel further asserts that there are new facts which have not previously been considered by either the Supreme Court or the Appellate Division in their orders affecting the default applications.

Defendants' counsel relates the history of the representation of the defendants by the law firm, Snitow and Pauley, and its successor firm, and notes that Charles Cunningham had sole responsibility for the defendants' representation after one of the partners ascended to the Federal bench. He avers that Mr. Cunningham ". . .was suffering from a severe emotional illness characterized by self-destructive conduct and multiple personalities that control his behavior", and unilaterally terminated his psychiatric treatment in 1997, leading to the defaults which form the basis for this application. He asserts that, ultimately, the discovery requests were complied with. Justice DiNoto's order of May 25, 2000 was also complied with by payment of the $1,000 sanction.

Defendants' counsel further avers that the Appellate Division, in its order of April 30, 2001 struck the defendants' order without addressing plaintiffs' acceptance of the sanction, and was unaware of Mr. Cunningham's mental condition. Subsequently, defendants' motion to renew and reargue the April 30, 2001 order, with the result that such relief was denied

without reaching the merits of the argument that the acceptance of the $1,000 sanction operates as a waiver of the plaintiffs' right to appeal.

Defendants contend that there are meritorious defenses to this action which were not originally raised as a result of Mr. Cunningham's psychological condition. They particularize that assertion by contending that there was no bad faith in the complained of lay offs inasmuch as the County was faced with a budgetary deficit that warranted such an action.

In opposition, the plaintiff's attorney avers that it cannot be controverted that the

Torre claims are meritorious. He further avers that the defendants' failures to respond to the plaintiffs' discovery demands have repeatedly been addressed by the Supreme Court and the Appellate Division. Counsel points out that the defendants have been on notice of these several [*6]defaults by service of the orders and notices on both the law firm as well as the County Attorney's office. Counsel asserts that defendants' attorney, in the defendants'

appellate brief, raised the issue of the plaintiffs' acceptance of the $1,000 check and the Appellate Division, notwithstanding, struck the defendants' answer, and to permit this issue to again be raised would permit an impermissible reargument. Counsel argues that the

Appellate Division, in rendering the April 30, 2001 order, did not overlook or misapprehend any facts and this Court does not, on those grounds, have the requisite jurisdiction to hear such a motion. Counsel also argues that no new facts have been raised to warrant a renewal of the motion to reinstate the defendants' answer.

The plaintiffs' attorney contends that there are inconsistencies in defendants' assertion that the defendants' repeated failures to respond to the plaintiffs' discovery demands were solely due to Mr. Cunningham's emotional problems, pointing out instances of cogent and astute legal actions by the defendants' attorney at several interim stages. Counsel argues that there has been no proof of a meritorious defense proffered by one with personal knowledge; and that the pro forma affidavits from the County employees do not sustain the burden of proving a meritorious defense.

Alfred Samenga was the County Attorney at the time that the instant motion was made in 2001. He was not the County Attorney at the time of the layoffs in 1992. Counsel further argues that because Mr. Samenga was not the County Attorney at the time when the layoffs occurred, he has no personal knowledge of the facts.

Defendants' attorney asserts that the plaintiffs, through their attorney, have ignored the order of the Appellate Division dated August 31, 2001 and Justice DiNoto's order of May 25, 2000, in that it is the order of the Appellate Division of August 31, 2001 which confers jurisdiction on this Court to consider the waiver issue and the requirements for vacatur. Counsel argues that the plaintiffs' attorney has not addressed the content of the affirmations of Mr. Cunningham or Dr. Lefer, only that he has addressed the outward effectiveness of Mr. Cunningham as an adversary and that highlights the paradox of Mr. Cunningham's behavior without refuting his failures to complete discovery. He further argues that plaintiffs' attorney's practice of noticing the County Attorney's office on each litigation paper (notices, orders, etc) does not serve to make the County responsible for the various defaults, because

the County Attorney's office plays no role in matters delegated to outside counsel. Defendants' attorney contends that a meritorious defense has been demonstrated, and that the affirmations submitted in that regard are sufficient for that purpose. He also contends

that the Torre decision's impact is limited to that particular petitioner's position and two line items in the 1992 budget ordinance; that Justice DiNoto's memorandum decision of June 26, 1996 addressed plaintiffs' contentions that Torre applied to all County employee layoffs in 1992 and the Appellate Division affirmed that decision.

Initially, this Court addresses the procedural issue raised by the plaintiffs' attorney, i.e., whether this Court can entertain and decide this application in the face of the doctrine

of "law of the case"; that this application constitutes an impermissible appeal of the Appellate Division's order of April 30, 2001; and that since the defendants had an opportunity to fully and fairly litigate these assertions to the Appellate Division.

Chronologically, the Appellate Division, in its decision and order dated April 27, 1998, affirmed Justice DiNoto's order which granted the plaintiffs leave to amend the complaint to add a Torre cause of action, and denied the application for class action status stating, inter alia, that ". . .the Supreme Court properly determined that the amendment was

not time-barred because the original complaint gave sufficient notice of the underlying facts...", [and that] [t]he Supreme Court also properly denied that branch of the motion which

was for class action status. . .". After motion practice that has been addressed previously herein, Justice DiNoto granted the plaintiffs' motion to strike the defendants' answer ". . .

unless the defendants, within ninety (90) days. . . completely and fully comply with the aforesaid Notice of the plaintiffs" (order, July 9, 1999). Subsequent motion practice resulted

in a memorandum decision of Justice DiNoto dated March 17, 2000, which struck the defendants' answer, based on a failure to oppose the motion returnable March 15, 2000. The defendants' order to show cause to vacate that Memorandum Decision was opposed by the plaintiffs' attorney's affirmation, in which he requested, inter alia, ". . . sanctions and attorneys fees be paid. . .". Justice DiNoto's Short Form Order, dated May 25, 2000, which decided that motion by the defendants, stated in its ultimate sentence: "Accordingly, costs and attorneys' fees in the amount of $1,000.00 are imposed as a condition for vacatur [of defendants' default in appearance in response to plaintiffs' motion of March 15, 2000 and the memorandum decision of March 17, 2000] as both parties have indicated that such remedy is preferable to either an order refusing to vacate, or an order which provides no redress for plaintiffs". (emphasis supplied) There is no dispute that the $1,000 sanction was timely paid. The Appellate Division, in its decision and order to reverse that May 25, 2000 Short Form Order, addressed neither the waiver issue, nor the issue of law office failure regarding Mr. Cunningham's emotional illness.

Significantly, in the determination of the defendants' motion for renewal and reargument of that same order of May 25, 2000, and the decision and order of April 30, 2001

deciding that appeal, the Appellate Division, in the decision and order of August 31, 2001, "ORDERED that the motion is denied, without prejudice to the respondents seeking relief in the Supreme Court". The bases of that motion to renew and reargue before the Appellate

Division were, for the first time in the tortured history of this case, the plaintiffs' attorney's acceptance of the $1,000 as a waiver of the appeal, and Mr. Cunningham's condition of a severe emotional illness as the sole causative factor of the defendants' underlying default.

While the general issue of the concept "law office failure" was only mentioned in the Appellate Division's order of April 30, 2001, there was no mention of Mr. Cunningham's emotional breakdown in the time leading up to the defendants' motion to renew and reargue before the Appellate Division as there is no evidence of the existence of that problem prior to the [*8]defendants' Order to Show Cause to renew and reargue of June 2001. Similarly, while there was a mention of the payment of $1,000 sanction, there was no specific argument that such effected a waiver of plaintiffs' right to appeal.

The succinct determination by the Appellate Division dated August 31, 2001, denying the renewal and reargument also, in effect, infuses this Court with the ability to address those issues and arguments on a subsequent similar application, such as is herein presented.

Accordingly, this Court determines, in its discretion, that renewal is appropriate in these circumstances. (Granato v Waldbaum's Inc., 289 AD2d 289, 734 NYS2d 498, 2nd

Dept., 2001; Daniel Perla Associates v Ginsberg, 256 AD2d 303, 681 NYS2d 316, 2nd Dept., 1998).

Upon renewal, then, while the plaintiffs' attorney questions the veracity of Mr. Cunningham's condition and when the law firm of Snitow and Cunningham discovered his condition and the effects of that emotional breakdown, this Court is satisfied that the law firm did not know of his condition until just prior to that motion to renew and reargue to the Appellate Division. While this Court is aware of the fact that Dr. Lefer's "evaluation in report form, dated May 29, 2001" was not attached to the moving papers herein, Dr. Lefer's

affirmation is sufficiently particular to apprise this Court and plaintiffs' counsel of its

content and is sufficient to demonstrate, prima facie, Mr. Cunningham's mental state prior to June 1. Moreover, the Court notes that, by statute, it may exercise ". . .its discretion in the interests of justice to excuse delay or default resulting from law office failure" (CPLR 2005), which is plainly what occurred herein.

A movant, in an application to vacate, is only required to set forth facts sufficiently establishing that such claim or defense is meritorious . . .[rather than being required to prove a defense]" (Anamdi v Anugo, 229 AD2d 408, 644 NYS2d 804, 2nd Dept., 1996). The meritorious defenses relative herein are clearly of a legal nature, and while Mr. Samenga was not the County Attorney when these claims arose, he is competent to address the meritorious nature of that aspect of the motion, obtaining the facts from files that he has reviewed. The record herein establishes only that a Torre claim has been added as a claim for relief in the complaint, not that it is immutably established as to all plaintiffs herein. The defendants have

sufficiently established, by the affidavits in the record, that there is a defense to the plaintiffs' claim of bad faith, i.e., the undisputed financial crisis of 1991 which precipitated the lay offs.

With respect to the issue of waiver of the plaintiffs' right to appeal, it is clear, from the briefs, affirmations and arguments presented on the appeal, that the issue of waiver by reason of plaintiffs' counsel's acceptance of the $1,000 sanction was never raised prior to the June 2001 application to the Appellate Division and that body never addressed that argument, although it was mentioned factually. Such mention was tangential only, and not fatal to a motion to reargue (CPLR 2221(d)(2); Melendez v Methodist Hospital, 203 AD2d 435, 610 NYS2d 855, 2nd Dept., 1994), as it appears to be a situation where the Court overlooked binding legal authority, making [*9]reargument appropriate as well. As stated in Philadelphia Indemnity Ins. Co. v Community Assistants Transportation, Inc. (249 AD2d 458, 671

NYS2d 314, 2nd Dept., 1998): "It is well-settled that when costs are imposed as a condition for granting relief, a party's acceptance of the costs will be held to waive the right to appeal' (Harris v Resnikoff, 118 AD2d 622, 623, 499 NYS2d 773)".

Upon reargument, with respect to the issue of waiver as to the plaintiffs' right to appeal Justice DiNoto's order of May 25, 2000, this Court grants reargument as well, and upon reargument determines that there was a waiver of the plaintiffs right to appeal that order of May 25, 2001. Renewal of the order of the Appellate Division of April 30, 2001 having

been granted, and the requirements of vacating the defendants' default on the underlying order of Justice DiNoto having been established, an analysis of the facts, as herein

established in the context of the April 30, 2001 order, leads to the conclusion that the defendants are relieved of their respective defaults, and their answer is reinstated.

Dated

J.S.C.