Gonzalez v. New York City Transit Authority

294 A.D.2d 130, 740 N.Y.S.2d 879, 2002 N.Y. App. Div. LEXIS 4666

Opinion

—Order, Supreme Court, New York County (Eileen Bransten, J.), entered December 5, 2000, which, in an action for personal injuries arising out of a collision involving a rented car operated by the individual defendant-respondent and owned by the corporate defendant-respondent, denied plaintiffs motion for a default judgment against the individual respondent and granted respondents’ cross motion to compel plaintiff to accept the individual respondent’s answer, unanimously affirmed, without costs.

The default of the individual respondent, a nonresident who was served pursuant to Vehicle and Traffic Law § 253, was properly excused upon a showing that his attorney did not know he had been served, and that plaintiffs attorney knew that respondents’ attorney, who timely appeared on behalf of the corporate respondent, intended to appear for the individual respondent as well (see, Johnson v Marriott Mgt. Serv. Corp., 262 AD2d 141). Such showing includes an unanswered letter from respondents’ attorney to plaintiffs attorney confirming a telephone conversation of the same date between persons in their offices and enclosing a stipulation extending both respondents’ time to answer. Plaintiff describes no prejudice attributable to the delay. Concur—Williams, P.J., Nardelli, Saxe, Rosenberger and Marlow, JJ.