Goldman v. City of New York

287 A.D.2d 482, 731 N.Y.S.2d 212, 2001 N.Y. App. Div. LEXIS 9429

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 9, 2001
• Status: Published

Opinions

—In an action to recover damages for personal injuries and wrongful death, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Hutcherson, J.), dated January 29, 2001, which denied their motion for leave to enter a judgment against the defendant Carlos R. Anchundia upon his failure to appear or answer, and granted the cross motion of that defendant pursuant to CPLR 2004 to extend his time to serve his answer.

Ordered that the order is affirmed, with costs.

On July 6, 1999, the defendant Carlos R. Anchundia was driving an automobile on Ocean Parkway in Brooklyn when he struck and severely injured the plaintiff’s decedent, who died from her injuries later that day. At the time of the accident, Anchundia was employed as a New York City police officer. Thereafter, by summons and complaint filed April 14, 2000, the plaintiffs commenced this action against Anchundia, the City, and the Police Department, seeking damages, inter alia, for Goldman’s wrongful death. According to the plaintiffs, service was effectuated upon Anchundia on May 24, 2000, by affixing the summons and complaint to the door of his residence, and mailing the documents to him. Approximately four months later, the plaintiffs moved for leave to enter a judgment against Anchundia upon the ground that he had failed to appear in the action or serve an answer to the complaint. Anchundia then cross-moved, pursuant to CPLR 2004, for an extension of time in which to serve an answer. In an affirmation in support of the cross motion, Anchundia’s attorney explained that he did not receive a copy of the summons and complaint until November 7, 2000, and that initially there was some confusion as to whether the City would be undertaking Anchundia’s defense, since he had been sued in his capacity as a police officer. The cross motion was accompanied by, inter alia, a proposed verified answer, which denied the allegations of negligence set forth in the complaint, and asserted several affirmative defenses, including contributory negligence. The Supreme Court denied the plaintiffs’ motion for leave to enter a default judgment, and granted Anchundia’s cross motion to extend his time to answer.

The Supreme Court properly denied the plaintiffs’ motion for leave to enter a judgment upon Anchundia’s default, and granted the cross motion to extend his time to answer. It is well settled that public policy favors the resolution of cases on the merits. Courts have broad discretion to grant relief from pleading defaults where the moving party’s claim or defense is meritorious, the default was not willful, and the other party is not prejudiced (see, Cleary v East Syracuse-Minoa Cent. School Dist., 248 AD2d 1005; Lichtman v Sears, Roebuck & Co., 236 AD2d 373). Anchundia’s delay in serving his answer was brief and not willful, and there is no evidence that the plaintiffs were prejudiced by the delay (see, Khanna v Premium Food & Sports Enter., 279 AD2d 508; Trent v Bedford Stuyvesant Restoration Ctr., 277 AD2d 444). Furthermore, the proposed verified answer which Anchundia submitted in support of his cross motion was sufficient to demonstrate the existence of a potentially meritorious defense (see, Richard Kranis, P. C. v European Am. Bank, 208 AD2d 904; Buderwitz v Cunningham, 101 AD2d 821). Although our dissenting colleagues contend that the proposed answer cannot suffice to establish that Anchundia has a meritorious defense to the action because it was verified by counsel, as permitted by CPLR 3020 (d), we note that we have previously accepted an answer verified by counsel as sufficient to demonstrate a meritorious defense in the context of a motion for leave to serve a late answer pursuant to CPLR 2004 (see, Piccirillo v Scarlino Fuel Oil Co., 265 AD2d 470). There is no indication that the attorney who verifled the defendant’s answer in Piccirillo actually witnessed the subject accident, and while the defendant driver did submit an affidavit in that case, it merely stated that he was driving slowly when he struck the plaintiff pedestrian, and that his attorney informed him that he had a meritorious defense. In addition, while an Administrative Law Judge suspended Anchundia’s driver’s license based upon a finding that he had violated Vehicle and Traffic Law § 1146 by failing to exercise due care to avoid striking a pedestrian, this finding does not conclusively establish, as a matter of law, that the decedent was free from contributory negligence. In sum, given the strong public policy in favor of resolving cases on their merits, and considering the brevity of the unintentional delay, the Supreme Court providently exercised its discretion in affording Anchundia an opportunity to defend this action. O’Brien, J. P., Krausman and Schmidt, JJ., concur.