Harcztark v. Drive Variety, Inc.

21 A.D.3d 876, 800 N.Y.S.2d 613

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 6, 2005
• Status: Published

Opinions

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Grays, J.), dated October 10, 2003, which granted the defendants’ motion to vacate their default in answering the complaint and for leave to serve and file a late answer.

Ordered that the order is affirmed, with costs.

Contrary to the plaintiff’s contention, the Supreme Court providently exercised its discretion in granting the defendants’ motion to vacate their default in answering and for leave to serve a late answer (see Trimble v SAS Taxi Co. Inc., 8 AD3d 557 [2004]; Goodman v New York City Health & Hosps. Corp., 2 AD3d 581 [2003]; Veith Enters. v Electrical Dev. & Constr., 292 AD2d 376 [2002]). We disagree with our dissenting colleague that our prior cases should be read to hold that delay by an insurance company may never constitute all or part of a reasonable excuse by an insured for a default. Whether there is a reasonable excuse for a default is a discretionary, sui generis determination to be made by the court based on all relevant factors, including the extent of the delay, whether there has been prejudice to the opposing party, whether there has been willfulness, and the strong public policy in favor of resolving cases on the merits (see Orwell Bldg. Corp. v Bessaha, 5 AD3d 573 [2004]). We find no basis to categorically exclude consideration of a delay by an insurance company in making such a determination. H. Miller, J.P., Schmidt, Ritter and Skelos, JJ., concur.