Weissblum v. MOSTAFZAFAN FOUND. OF NEW YORK

60 N.Y.2d 637 (1983)

George A. Weissblum et al., Appellants, v. Mostafzafan Foundation of New York, Formerly Known as the Pahlevi Foundation, Respondent.

Court of Appeals of the State of New York.

Submitted July 11, 1983.

Decided September 7, 1983.

Stuart B. Newman and Vincent J. Syracuse for appellants.

Peter I. Livingston and Jill S. Levin for respondent.

Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, MEYER and SIMONS concur."

*638MEMORANDUM.

Defendant seeks to reargue our recent decision (59 N.Y.2d 815) in this case whereby we decided that the rule of Barasch v Micucci (49 N.Y.2d 594) and Eaton v Equitable Life Assur. Soc. (56 N.Y.2d 900) should be applied to preclude defendant from vacating a default judgment entered against it for failing, as a result of law office failure, to timely file an answer.

Subsequent to our disposition of the liability question in this case, the Legislature passed and the Governor signed into law a new section 2005 to the CPLR which allows the *639 lower courts to exercise discretion "to excuse delay or default resulting from law office failure." (L 1983, ch 318.) That statute, by its terms, was made applicable to every action or proceeding still pending before a court. Although we previously disposed of the liability question in this matter, the issue of damages is yet to be resolved at trial. Consequently, the "action * * * still is pending before a court" and CPLR 2005 must, therefore, be applied.

While both courts below decided that defendant's default was excusable, they did so without considering the requirements of CPLR 3012 (subd [d]) and 5015 (subd [a]) as mandated by CPLR 2005.

Accordingly, defendant's motion for reargument should be granted, our previous order and decision should be vacated, and, upon reargument, the order of the Appellate Division should be reversed and the case remitted to that court for the exercise of its discretion under the new legislation.

Motion for reargument granted, this court's order and decision of June 7, 1983 vacated, the remittitur recalled, and, upon reargument, the following determination is substituted therefor: "On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order reversed, with costs, case remitted to the Appellate Division, First Department, for further proceedings in accordance with the memorandum herein, and the question certified answered in the negative.