| Franz v Home Sweet Home Inspections, Inc. |
| 2007 NY Slip Op 50055(U) [14 Misc 3d 131(A)] |
| Decided on January 8, 2007 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Appeal from an order of the District Court of Suffolk County, Sixth District (Gigi A. Spelman, J.), entered March 29, 2006. The order, insofar as appealed from, conditioned the granting of defendant's motion to vacate a default judgment upon defendant paying plaintiffs the sum of $150.
Order affirmed with $10 costs.
In this small claims action alleging a deficient home inspection, plaintiffs were awarded a default judgment in the sum of $5,000, plus interest and costs, after inquest. In support of a motion to vacate the default judgment, defendant's counsel asserted that entry of a default judgment was improper because he had filed an affirmation of
actual engagement, together with documentation of scheduled hearings in felony and misdemeanor cases. The District Court, noting that defendant had been granted a number of previous adjournments and that the case had been marked final against defendant three times, ordered, as a condition of vacating the default, that defendant pay plaintiffs the sum of $150. Defendant appeals, arguing that the determination of the court to hold an inquest on default, after counsel had served the affirmation of engagement, was an abuse of discretion, so that the imposition of costs as a condition of the vacatur was not proper.
Pursuant to 22 NYCRR 125.1 (e) (1), "each engagement shall be proved by affidavit or affirmation, filed with the court together with proof of service on all parties...." Here, defendant's attorney acknowledged in his affirmation that he had not been able to notify plaintiffs of his request for an adjournment, and there was no proof of service filed with the court. Thus, counsel failed to comply with 22 NYCRR 125.1 (e) (1) (see Matter of Sutton v Mitrany, 30 AD3d 678 [2006]). Additionally, there is no indication in the record that the court timely received counsel's affirmation before granting the default judgment to plaintiffs. Under these circumstances, there [*2]is no basis for finding that the
court's decision to impose costs as a condition of the vacatur was an improvident exercise of discretion (see CPLR 5015 [a]). Accordingly, substantial justice was done between the parties according to the rules and principles of substantive law (UDCA 1804, 1807).
Rudolph, P.J., McCabe and Lippman, JJ., concur.
Decision Date: January 8, 2007