Landis v. Weiss

— Order of the Supreme Court, New York County (Ostrau, J.), entered October 15, 1982, which granted plaintiffs’ motion to vacate their default and the judgment entered upon the default, is reversed, on the law and facts, and the motion by plaintiffs denied without costs, on constraint of Barasch v Micucci (49 NY2d 594). Special Term correctly found that plaintiffs’ counsel was grossly negligent in failing to keep abreast of this action and also failing to keep defendants adequately informed of his status with the various law firms he had been associated with during the pendency of this action. Although recognizing that law office failure is not a sufficient excuse to open a default, Special Term granted the motion on condition plaintiffs’ counsel pay the sum of $500 to defendants’ attorney, which sum was not to be chargeable to plaintiffs. Although this court has in the past conditionally vacated a default judgment against defendants where the default was not due to any fault on the client’s part but only to the attorney’s failure to perform his duty and where a meritorious defense was shown, the Court of Appeals rejected this remedy of vacating the default and leveling a monetary penalty (Q.P.I. Rests, v Slevin, 58 NY2d 769, revg 88 AD2d 844). Concur — Ross, J. P., Asch, Bloom, Fein and Alexander, JJ.