Higgins v. Bellet Construction Co.

287 A.D.2d 377, 731 N.Y.S.2d 446, 2001 N.Y. App. Div. LEXIS 9891

Opinion

—Order, Supreme Court, New York County (Walter Tolub, J.), entered May 23, 2001, which denied plaintiffs motion for a default judgment, unanimously affirmed, without costs.

Defendant met its burden of demonstrating a meritorious defense and a reasonable excuse for the untimely service of its answer (see, Barajas v Toll Bros., 247 AD2d 242). Defendant’s counsel affirms that because of a death in the family he was away when the complaint was forwarded to his office and it was then misplaced by his staff. Upon learning of the complaint, counsel promptly sent an unverified answer to plaintiff, advising that he intended to follow up with a verified copy as soon as his client’s verification had been obtained; a verified answer was, in fact, served upon plaintiff about one month later. There is no indication that defendant’s short delay prejudiced plaintiffs ability to prosecute this personal injury action and, accordingly, deviation from this State’s strong public policy favoring litigation of claims on their merits would not be warranted (see, Silverio v City of New York, 266 AD2d 129; Meyer v Rose, 160 AD2d 565). The IAS court’s sua sponte grant of affirmative relief to defendant to rectify the late service of its answer was not an improvident exercise of discretion (see, Share v Village of Westhampton Beach, 121 AD2d 887). We have considered plaintiffs remaining arguments and find them unavailing. Concur — Nardelli, J. P., Tom, Mazzarelli, Ellerin and Lerner, JJ.