Opinion
August 13, 1984
Appeal from the Supreme Court, Westchester County (Buell, J.).
Order entered October 6, 1983, insofar as it denied that branch of defendant's motion which, in effect, sought an order vacating his default and leave to interpose an answer reversed, as a matter of discretion, without costs or disbursements, and that branch of the motion granted to the extent that defendant is granted leave to serve an answer on condition that defendant's attorney personally pays plaintiffs $1,000 and said answer is served, said conditions to be performed within 20 days after service upon defendant's attorney of a copy of the order to be made hereon, with notice of entry. If these conditions are not complied with, then order affirmed insofar as appealed from, with costs.
Order entered July 11, 1983 modified accordingly, and otherwise affirmed, without costs or disbursements.
The issue on traverse was whether or not defendant was personally served with process at his office in Mt. Kisco on August 4, 1982.
The testimony on this issue was conflicting and presented a pure question of credibility which the court resolved in favor of finding service. This determination, made with the opportunity to observe the witnesses' demeanor, is entitled to deference and will not be disturbed (see Matter of Poggemeyer, 87 A.D.2d 822; Perry v Perry, 79 A.D.2d 851).
Under the facts and circumstances of this case, it was error for Special Term to have refused to grant defendant the opportunity to interpose an answer and defend this action on the merits. However, in view of the conduct of counsel, we have imposed an appropriate sanction. Lazer, J.P., Bracken, Weinstein and Niehoff, JJ., concur.