Ian v. Golub , 114 A.D.2d 810 ( 1985 )

—Order of the Supreme Court, New York County (Andrew R. Tyler, J.), entered on December 18, 1984, granting plaintiff’s motion to vacate a default and reinstating the complaint, is affirmed, without costs.

Plaintiff submitted an affidavit of merit as to his own action and defenses against defendant’s counterclaims. In addition, plaintiff’s failure to answer interrogatories served upon him, while various motions for summary judgment were pending, was not willful or contumacious. It appears that plaintiff did not serve answers while an appeal was pending on advice of counsel, in anticipation of a stay being granted by the Appellate Division. Shortly after this court denied interim relief, defendant moved to strike the complaint while plaintiff’s attorney was on vacation. Plaintiff moved expeditiously to vacate his default and there has been no prejudice shown by defendant. Under the circumstances, Special Term did not abuse its discretion in granting plaintiff a vacatur of his default. Concur—Sandler, Asch, Fein and Rosenberger, JJ.