Harris v. Schiller

90 A.D.2d 822, 455 N.Y.S.2d 838, 1982 N.Y. App. Div. LEXIS 19064

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 22, 1982
• Status: Published

Opinion

In an action to recover damages, inter alia, for malicious prosecution, plaintiffs appeal (1) from an order of the Supreme Court, Dutchess County (Jiudice, J.), dated November 13, 1980, which denied their motion for leave to enter a judgment by default and directed them to accept defendant’s verified answer, and (2) from a further order of the same court, dated August 21, 1981, which denied their subsequent motion for leave to enter a default judgment, without prejudice to renewal after service of a correct notice of entry. Orders affirmed, with one bill of $50 costs and disbursements. Four days after personal service of the summons and complaint upon the defendant, his underwriter sought a 15-day extension of time to investigate coverage under defendant’s homeowner policy and it appears that plaintiffs granted a two-day extension. Four days after the expiration of the two-day extension, the plaintiffs moved for leave to enter a judgment by default. Seven days after plaintiffs’ motion, defendant’s underwriter disclaimed coverage and defendant’s personal attorney mailed a verified answer to plaintiffs. These facts, as they appear in the papers submitted in opposition to plaintiffs’ motion, do not establish any willful default or laxity by defendant (see Swidler v World-Wide Volkswagen Corp., 85 AD2d 239), and the verified answer in this case, in lieu of an affidavit of a meritorious defense, satisfies the criteria of Barasch v Micucci (49 NY2d 594) (see A & J Concrete Corp. v Arker, 54 NY2d 870; see, also, Eaton v Equitable Life Assur. Soc. of U. S., 56 NY2d 900, which extended the Barasch rule regarding “law office failures” to defendants). The plaintiffs’ failure to serve a proper notice of entry of the order dated November 13, 1980, was a sufficient basis to support the order dated August 21,1981, which denied plaintiffs’ subsequent motion to enter a default judgment, without prejudice ■ to renewal after service of a correct notice of entry. O’Connor, J. P., Bracken, Brown and Niehoff, JJ., concur.