Passas v. Razis & Ross

In an action to recover damages for breach of contract, fraud and legal malpractice, plaintiffs appeal from so much of an order of the Supreme Court, Queens County (Lonschein, J.), dated March 6, 1984, as, upon denying defendants’ motion to dismiss the action for failure to timely serve a complaint, granting plaintiffs’ cross motion to compel defendants to accept service of a complaint, and relieving plaintiffs of their default, did so on condition that they pay $1,000 to defendants simultaneously with the service of their complaint. Order modified by reducing the sum plaintiffs were directed to pay to the defendants to $250. As so modified, order affirmed, insofar as appealed from, with costs to plaintiffs. Plaintiffs’ time to make the required payment and to serve their complaint is extended until 20 days after service upon them of a copy of the order to be made hereon, with notice of entry. On the totality of the circumstances presented and in light of CPLR 2005, 3012 (d), it was a proper exercise of discretion to relieve plaintiffs of their default. However, Special Term should have conditioned such relief upon the payment of only $250 (cf. Stark v Marine Power & Light Co., 99 AD2d 753; De Vito v Marine Midland Bank, 100 AD2d 530). Mollen, P. J., Mangano, Gibbons and Bracken, JJ., concur.