Socony Mobil Oil Co. v. Salamy , 13 A.D.2d 879 ( 1961 )

Plaintiff appeals from an order of Special Term which granted defendants’ motion to set aside a default judgment Avith leave to serve an answer to the verified complaint. Plaintiff challenges this order as an improper exercise of discretion by the court beloAv. The action Avas commenced in Supreme Court, Albany County, by service of summons August 7, 1959. The defendants filed a notice of appearance b;r their attorney, William Perry, on August 17, 1969. Although this notice contained a demand for a copy of the complaint, none Avas served until late October, 1959. On November 4, 1959, approximately tAvo weeks after the complaint Avas served and before any service of an ansAver, plaintiff filed a note of issue for the December Trial Term. No answer Avas ever interposea. Thereafter, plaintiff avers, a notice was mailed by the Clerk of the court to both attorneys informing them that the case would be reached May 2, 1960. Defendants’ attorney alleges that through “inadvertence” he failed to note the matter on his calendar and default judgment was entered on May 4, 1960. The order opening this default was granted August 12-, 1960. In our víbav, on this record, Special Term could find in his discretion that the default was excusable and further that there may be a meritorious defense. The papers indicate a possible defense of payment and defendants’ counsel swears that he believes there is a defense on the merits. Order unanimously affirmed, without costs. Present — Bergan, P. J., Coon, Gibson, Reynolds and Taylor, JJ.