Bergida v. Wassen

Appellate Division of the Supreme Court of New York

Bergida v. Wassen

186 A.D.2d 522, 588 N.Y.S.2d 1018, 1992 N.Y. App. Div. LEXIS 12365

Appellate Division of the Supreme Court of the State of New York·Decided October 29, 1992·Published·Cited by 1 cases

Opinion

— Order, Supreme Court, New York County (Charles E. Ramos, J.), entered October 18, 1991, which denied plaintiffs motion pursuant to CPLR 3215 (a) for an order directing entry of a default judgment and an assessment, and granted defendant’s cross-motion pursuant to CPLR 3012 (d) compelling plaintiff to accept late service of his answer upon payment of $250 by defendant individually to plaintiffs attorney, unanimously affirmed, without costs.

Defendant offered both a reasonable excuse for his delay in serving his answer and a meritorious defense to the action (see, Pokoik v Gittens, 171 AD2d 470). It is evident that defendant’s default was not deliberate, and that he moved promptly to vacate the alleged default. Further, the delay in answering did not prejudice plaintiff (see, Bermudez v City of New York, 22 AD2d 865). Lastly, "[w]hile defendant’s opposition papers did not include an affidavit of merits, the verified answer can be considered in determining whether a meritorious defense exists” (Meyer v Rose, 160 AD2d 565). Concur— Sullivan, J. P., Rosenberger, Wallach and Ross, JJ.

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— Order, Supreme Court, New York County (Charles E. Ramos, J.), entered October 18, 1991, which denied plaintiffs motion pursuant to CPLR 3215 (a) for an order directing entry of a default judgment and an assessment, and granted defendant’s cross-motion pursuant to CPLR 3012 (d) compelling plaintiff to accept late service of his answer upon payment of $250 by defendant individually to plaintiffs attorney, unanimously affirmed, without costs.

Defendant offered both a reasonable excuse for his delay in serving his answer and a meritorious defense to the action (see, Pokoik v Gittens, 171 AD2d 470). It is evident that defendant’s default was not deliberate, and that he moved promptly to vacate the alleged default. Further, the delay in answering did not prejudice plaintiff (see, Bermudez v City of New York, 22 AD2d 865). Lastly, "[w]hile defendant’s opposition papers did not include an affidavit of merits, the verified answer can be considered in determining whether a meritorious defense exists” (Meyer v Rose, 160 AD2d 565). Concur— Sullivan, J. P., Rosenberger, Wallach and Ross, JJ.

Bergida v. Wassen, 186 A.D.2d 522, 588 N.Y.S.2d 1018, 1992 N.Y. App. Div. LEXIS 12365 (N.Y. Ct. App. 1992).

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Opinion

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