Harp v. Malyn

161 A.D.2d 929, 557 N.Y.S.2d 500, 1990 N.Y. App. Div. LEXIS 5804

Opinion

Levine, J.

Appeal from an order of the Supreme Court (Brown, J.), entered October 10, 1989 in Saratoga County which, inter alia, denied plaintiff’s motion for a default judgment against defendant John C. Malyn.

Supreme Court properly denied plaintiff’s motion for a default judgment against defendant John C. Malyn. Malyn’s pro se answer was served only nine days late and his explanation that he resides in Arizona and was unable to retain an attorney in New York to represent him in this action constitutes a reasonable excuse for the delay (see, CPLR 3012 [d]). We also find no merit to plaintiff’s contention that Supreme Court abused its discretion in dismissing plaintiff’s action against Malyn on forum non conveniens grounds. Malyn is a resident of Arizona and all of the alleged tortious conduct occurred in Arizona. Moreover, the dismissal of the same complaint against two other defendants on forum non conveniens grounds has not been appealed by plaintiff and we see no benefit in having this action tried separately in different jurisdictions.

Order affirmed, without costs. Kane, J. P., Weiss, Mikoll, Yesawich, Jr., and Levine, JJ., concur.