Opinion
September 29, 1997
Appeal from the Supreme Court, Nassau County (Franco, J.).
Ordered that the order is modified by deleting the provision thereof denying the plaintiff's motion to vacate the November 16, 1995, order and substituting therefor a provision granting the motion and reinstating the complaint on condition that the plaintiff's law firm, Kennedy Associates, pay $750 to the defendant's law firm, John Ray Associates, within 20 days after service of a copy of this decision and order with notice of entry; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements; and it is further,
Ordered that in the event the condition is not complied with, the order is affirmed insofar as appealed from, without costs or disbursements.
The Supreme Court improvidently exercised its discretion in declining to vacate the plaintiff's default since she proffered a reasonable excuse for that default ( see, CPLR 2005) and submitted an affidavit of merits demonstrating that her complaint has merit ( see, Fidelity Deposit Co. v. Andersen Co., 60 N.Y.2d 693). However, in view of the unnecessary appearances and motion practice which resulted from the conduct of the plaintiff's counsel, it is appropriate to require the payment of the sum of $750 as a condition of vacatur ( see, Pegalis v. Gibson, 237 A.D.2d 420; Smith v. New York Tel. Co., 235 A.D.2d 529).
We have not reviewed the court's subsequent order, dated July 22, 1996, denying the plaintiff's motion denominated as one for renewal. The motion was actually a motion for reargument, the denial of which is not appealable ( see, McGill v. Polytechnic Univ., 235 A.D.2d 402; King v. Rockaway One Co., 202 A.D.2d 395). CPLR 5517 (b) permits appellate review of certain subsequent orders only if such orders are appealable as of right.
Mangano, P.J., Copertino, Altman and Goldstein, JJ., concur.