Broadlawn Harbor Ass'n v. Aetna Casualty & Surety Co.

91 A.D.2d 674, 457 N.Y.S.2d 431, 1982 N.Y. App. Div. LEXIS 19549

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 27, 1982
• Status: Published

Opinion

— In an action to recover on an insurance contract, plaintiff appeals from an order of the Supreme Court, Nassau County (Levitt, J.), dated May 27,1982, which granted defendant’s motion to open its default in answering on condition that it pay plaintiff the sum of $250. Order reversed, on the law, with $50 costs and disbursements, motion denied and matter remitted to the Supreme Court, Nassau County, for an assessment of damages against defendant. The excuse proffered by defendant for its failure to serve an answer until some four months after service upon it of the summons and complaint, and only subsequent to plaintiff’s motion for leave to enter a default judgment and for an assessment of damages, amounts to nothing more than law office failure (see Eaton v Equitable Life Assur. Soc. of U. S., 56 NY2d 900; Forde v City of New York, 90 AD2d 822). Accordingly, the default should not have been opened. Lazer, J. P., Weinstein, Bracken and Rubin, JJ., concur.