Foster v. Cia. Mar. Bananiera Italiana, S.P.A. , 51 A.D.2d 919 ( 1976 )

Order, Supreme Court, New York County, entered August 24, 1975, granting plaintiff’s motion for renewal, and upon renewal vacating plaintiffs default and restoring the action to the Trial Calendar upon condition that plaintiff pays $50 costs, unanimously modified, on the law, in the exercise of discretion and in the interests of justice to the extent of conditioning relief upon payment of the sum of $350 to be paid personally by plaintiffs counsel to the defendant-appellant Cia. Mar. Bananiera Italiana, S.P.A. within 20 days after service of a copy of the order entered herein, with notice of entry thereon, and as so modified, the order is affirmed, without costs and disbursements; if said sum is not timely paid, the order reversed, on the' law, and the motion is in all respects denied. Plaintiff engaged in several motions seeking to vacate his default which motions were characterized by a failure to present an adequate affidavit of merits, although a sufficient demonstration of excusable default was made. Special Term on plaintiffs most recent motion for renewal of his application to vacate the default, properly concluded that a sufficient affidavit of merits was now presented and in consequence vacated the default and restored the action to the Trial Calendar on condition plaintiff pay $50 costs. Vacatur of the default is also found in the lack of prejudice thereby to the defendant-appellant. However, the record clearly presents neglect on plaintiffs part in failing to sooner submit a proper affidavit of merits which would have eliminated the necessity of making additional applications to which defendant-appellant responded. This fault appears to be that of plaintiffs counsel and costs are imposed upon him, not upon his client (See Ferrari v Johnson & Johnson, 42 AD2d 940; Quinn v Cohn, 37 AD2d 927). Concur—Kupferman, J. P., Lupiano, Birns, Nunez and Lynch, JJ.