Better v. Town of Schodack

169 A.D.2d 965, 564 N.Y.S.2d 860, 1991 N.Y. App. Div. LEXIS 565

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 24, 1991
• Status: Published

Opinion

Casey, J.

Appeal from an order of the Supreme Court (Travers, J.), entered October 6, 1989 in Rensselaer County, which, inter alia, denied plaintiffs’ motion for a default judgment.

At issue on this appeal is whether Supreme Court abused its discretion when it denied plaintiffs’ motion for a default judgment and granted defendant’s motion to compel acceptance of a notice of appearance. Based upon the factors to be considered on a motion for relief pursuant to CPLR 3012 (d), we find no abuse of discretion (see, Shure v Village of Westhampton Beach, 121 AD2d 887; Continental Cas. Co. v Cozzalino Constr. Co., 120 AD2d 779). The delay was relatively brief, attributable in part to the refusal by defendant’s insurer to defend and in part to defendant being unaware that no notice of appearance had been filed when it learned of the insurer’s refusal to defend. Plaintiffs clearly were not prejudiced by the brief delay and there is no allegation of willful inaction by defendant. As to the merits, we note that CPLR 3012 (d) does not require an affidavit of merit as a precondition to obtaining relief where, as here, the delay has been of reasonably short duration (see, Continental Cas. Co. v Cozzalino Constr. Co., supra, at 779). In any event, there are affidavits in the record which reveal that at least a part of plaintiffs’ damages may have been caused by another party.

Order affirmed, with costs. Mahoney, P. J., Casey, Weiss, Mercure and Harvey, JJ., concur.