Hyson's Garage, Inc. v. Clark

84 A.D.2d 808, 444 N.Y.S.2d 143, 1981 N.Y. App. Div. LEXIS 16016

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 23, 1981
• Status: Published

Opinion

In a negligence action to recover for property damages sustained in an automobile accident, plaintiff appeals from an order of the Supreme Court, Dutchess County (Delaney, J.), entered April 17,1981, which denied its motion for entry of a default judgment based upon the failure of defendant to serve an answer and granted defendant’s cross motion to “open” the default and to compel plaintiff to accept his answer. Order affirmed, with $50 costs and disbursements. We have considered a variety of factors, including the relative shortness of the delay, the nature of defendant’s excuse, the apparent existence of a meritorious defense, and the absence of any apparent intention on his part to abandon his defense of the action, and conclude that Special Term was correct in granting defendant’s cross motion to open the default and to compel plaintiff to accept his answer (cf. Cockfield v Apotheker, 81 AD2d 651; Sequoia Constr. Corp. v Hunt, 78 AD2d 695; A&J Concrete Corp. v Arker, 78 AD2d 689, affd 54 NY2d 870). Hopkins, J. P., Damiani, Gibbons and Weinstein, JJ., concur.