Appeal from an order of the Civil Court of the City of New York, Kings County (Sylvia G. Ash, J.), entered December 19, 2007. The order granted plaintiff's motion to vacate an order dated April 27, 2007, which, inter alia, granted, on default, defendants' cross motion to dismiss the action.

Order modified by providing that plaintiff's motion to vacate the order dated April 27, 2007 is granted on condition that plaintiff's attorney pay defendants' attorney the sum of $500 within 20 days of the date of the order entered hereon; otherwise motion denied. As so modified, order affirmed without costs.

Plaintiff commenced this action by service of a notice of motion for summary judgment in lieu of complaint, and defendants cross-moved to dismiss the action. Plaintiff failed to appear in court on the adjourned date of the motions. Accordingly, by order dated April 27, 2007, the Civil Court denied, upon plaintiff's default, his motion for summary judgment in lieu of complaint and granted, on default, defendants' cross motion to dismiss the action. Thereafter, plaintiff moved to vacate the order dated April 27, 2007. The Civil Court granted the motion, and the instant appeal by defendants ensued.

On appeal, defendants contend that plaintiff failed to establish a reasonable excuse for his default. Defendants further argue that the order vacating plaintiff's default should have been conditioned upon plaintiff paying legal fees incurred by defendants as a result of the default. While we find that a vacatur of the April 27, 2007 order was warranted, we are of the opinion, under the circumstances presented, that vacatur should have been conditioned on plaintiff's attorney paying the sum of $500 to defendants' attorney.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: March 17, 2009