The opinion
Fallon, J. (dissenting).
I respectfully dissent in part. Defendants moved to dismiss plaintiffs’ complaint for failure to state a cause of action. The motion was granted in part and denied in part. The court’s order was served by mail on defendants’ counsel on March 23, 1992. Defendants filed their notice of appeal on March 31, 1992. Defendants’ answer was due on April 2, 1992 pursuant to CPLR 3211 (f). When plaintiffs did not receive the answer timely, plaintiffs moved pursuant to section 3215 of the CPLR for a default judgment. Defendants argued that CPLR 5519 (a) (1) imposes an automatic stay when an appeal is taken by a political subdivision of the State. Supreme Court, in reliance upon Eastern Paralyzed Veterans Assn. v Metropolitan Transp. Auth. ( 79 AD2d 516 ), held that the automatic stay provision of section 5519 is operative and denied plaintiffs’ motion for a default judgment.
The majority concludes that defendants were not entitled to an automatic stay (see, Baker v Board of Edue., 152 AD2d 1014 ) and that plaintiffs are accordingly entitled to a default judgment against defendant County. I agree with the majority that defendants were not entitled to an automatic stay; however, I do not agree that it follows that plaintiffs are entitled to an unconditional default judgment. Supreme Court, in the exercise of its discretion, could have and, in my opinion, should have granted the motion unless defendant County served its answer within a specified period of time. Defendants served their notice of appeal within 10 days of the order denying in part their motion to dismiss the complaint and did not serve their answer in mistaken reliance upon the automatic stay provision of CPLR 5519 (a) (1). Such a failure would constitute a justifiable excuse for failure to serve an answer (CPLR 3012 [d]) and, therefore, I would reverse and grant the default against defendant County unless it serves its answer within 10 days after the service of the order herein with notice of entry. (Appeal from Order of Supreme Court, Wayne County, Parenti, J. — Default Judgment.) Present — Green, J. P., Fallon, Boomer, Davis and Boehm, JJ. [See, Rotondo v Reeves, 153 Misc 2d 769 .]