Eisenberg v. Gerald R Michaels, Inc. , 58 A.D.2d 641 ( 1977 )

In an action to compel the determination of adverse claims to certain real property, plaintiff appeals from an order of the Supreme Court, Putnam County, dated June 8, 1976, which, inter alia; (1) granted defendant Santinelli’s motion to vacate his default in answering the complaint; and (2) recalled a prior order of the same court, dated April 1, 1976. Order affirmed, without costs or disbursements. Respondent’s time to answer is extended until 20 days after entry of the order to be made hereon. Respondent neglected to answer the complaint because he believed, due to the specific allegations contained therein, that he was not really involved in the suit. Considering the totality of the circumstances, as contained in the record, and in the interest of justice, Special Term’s vacatur of his default was a proper exercise of discretion. Respondent’s default cannot be termed willful, intentional or deliberate. Additionally, respondent has presented an adequate affidavit of merit. In keeping with the strong public policy, this matter should be disposed of on the merits (see Colgar Enterprises v Di Giaimo, 41 AD2d 654). Latham, J. P., Shapiro, Hawkins and Suozzi, JJ., concur.