SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT
October 30, 1969
IN THE MATTER OF THE ESTATE OF FORTUNATO MENTO, DECEASED, AND THE ESTATE OF FRANK MENTO, DECEASED. JOSEPH MONDO, RESPONDENT; PETER MENTO, APPELLANT
Appeal from orders of Onondaga Surrogate's Court in action for payment for legal services.
Goldman, P. J., Del Vecchio, Witmer, Gabrielli and Moule, JJ.
Memorandum: The refusal to open the default of appellant executor was an improvident exercise of discretion. No citation was served on the executor giving notice of the time and place of the hearing, and the fault of his attorney under these circumstances should not be charged against the estate. (Keenan v. Waring, 12 A.D.2d 601). Further, the default in attending one hearing was not so clearly deliberate or contumacious as to justify the approval of a substantial claim against the estate, especially since there may be meritorious defenses to the claim. (Levine v. Barricini, 278 App. Div. 801.) An opportunity to defend and a disposition upon the merits are favored [ Matter of Raichle, Moore, Banning & Weiss v. Commonwealth Fin. Corp., 14 A.D.2d 830
, Warbett v. Polokoff, 21 A.D.2d 771] and courts have inherent power in addition to that granted in the CPLR to open judgments in the interest of justice. (Matter of Marsh, 242 App. Div. 290, Flanson Realty Corp. v. Workers' Unity House, 229 App. Div. 179, 183, Baldwin v. Yellow Taxi Corp., 221 App. Div. 717.)
Orders unanimously reversed, without costs, and motion to open default granted.
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