Gleissner v. Singh

264 A.D.2d 811, 696 N.Y.S.2d 63, 1999 N.Y. App. Div. LEXIS 9403

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 27, 1999
• Status: Published

Opinion

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Golar, J.), dated September 1, 1998, which granted the defendant’s motion to compel him to accept a late answer, and denied his cross motion for leave to enter a judgment on the issue of liability upon the defendant’s default in answering and for an inquest on the issue of damages.

Ordered that the order is reversed, with costs, the motion is denied, the cross motion is granted, and the matter is remitted to the Supreme Court, Queens County, for an inquest on the issue of damages.

A motion to be relieved of a default in answering is addressed to the sound discretion of the court, and the exercise of such discretion generally should not be disturbed if there is support in the record therefor (see, Mondrone v Lakeview Auto Sales & Serv., 170 AD2d 586). Since the defendant failed to provide a reasonable excuse for his default and a meritorious defense to the action, the Supreme Court improvidently exercised its discretion in compelling the plaintiff to accept the defendant’s late answer (see, Mondrone v Lakeview Auto Sales & Serv., supra). Santucci, J. P., Krausman, Florio and H. Miller, JJ., concur.