Frucher v. Kaye's Auto Exchange, Inc.

74 A.D.2d 709

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 26, 1980
• Status: Published

Opinion

Appeal from an order of the Supreme Court at Special Term, entered March 14, 1979 in Columbia County, which denied plaintiffs’ motion for a default judgment and granted the motion of defendant Milroy Chevrolet, Inc., to serve an answer. We are unable to detect any abuse of discretion in Special Term’s decision which refused to grant a default judgment to plaintiffs against the codefendant, Milroy Chevrolet, Inc. The delay in answering the complaint was of relatively brief duration. It was satisfactorily explained as arising from the failure of defendant’s insurer to receive notice of the action until shortly before the instant motion was'made. The existence of potentially meritorious defenses to this negligence action was obvious and the default itself can hardly be characterized as a willful abandonment of the matter. Accordingly, the order appealed from should be affirmed (see Bishop v Galasso, 67 AD2d 753; West v Tracy, 56 AD2d 695). Order affirmed, without costs. Mahoney, P. J., Sweeney, Kane, Staley, Jr., and Mikoll, JJ., concur.