Majority
p. 320Dominick DeCesare et al., Respondents, v Arlene Feldmeier et al., Appellants, et al., Defendants.
— Order, Supreme Court, Bronx County (Anita R. Florio, J.), entered April 7, 1989, which granted plaintiffs’ motion to permit them to serve and file a reply and denied defendants’ cross motion to dismiss the complaint, sever their counterclaims and permit them to move for a default judgment, unanimously affirmed, with costs.
The court was not precluded from exercising its discretion to excuse the delay or default as a result of law office failure on condition and to the extent of requiring plaintiffs’ counsel to submit the proposed reply and affidavit of merits within 30 days after filing of the order and payment of $500 by plain
p. 321
tiffs’ counsel to defendants and their counsel (CPLR 2005, 3012 [d]). This is particularly so because of the prior proceedings herein. Concur — Kupferman, J. P., Carro, Asch, Rosenberger and Smith, JJ.