James L. Kapsis v Michael S. Peragine

Kapsis v Peragine 2004 NY Slip Op 05206 [8 AD3d 446] June 14, 2004 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 25, 2004

James L. Kapsis, Respondent,
v
Michael S. Peragine et al., Appellants.

—[*1]

In an action to recover damages for defamation, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Roberto, J.), entered April 22, 2003, as, upon reargument, adhered to so much of a prior determination in an order of the same court dated January 29, 2003, as conditioned the granting of the defendants' motion, inter alia, to vacate their default in answering the complaint upon their payment of the sum of $1,000 to the plaintiff.

Ordered that the order dated April 15, 2003, is reversed insofar as appealed from, on the facts and as a matter of discretion, with costs, and upon reargument, the defendants' motion is granted unconditionally.

Under the totality of the circumstances, including, inter alia, the very brief delay on the part of the defendants before the plaintiff moved for a default judgment and the minimal culpability on the part of the defendants, it was an improvident exercise of discretion for the Supreme Court to condition the granting of the defendants' motion, inter alia, to vacate their default in answering the complaint upon their payment of the sum of $1,000 to the plaintiff (see Island Seafood v Anchor Fish Distribs., 269 AD2d 426 [2000]). Smith, J.P., S. Miller, Adams and Rivera, JJ., concur.