Jerrick Waterproofing Co. v. Park Plaza Owners Corp.

251 A.D.2d 628, 676 N.Y.S.2d 490, 1998 N.Y. App. Div. LEXIS 7952

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 29, 1998
• Status: Published

Opinion

—In consolidated actions, inter alia, to recover damages for breach of contract, the defendant third-party plaintiff, Park Plaza Owners Corp., appeals from an order of the Supreme Court, Kings County (Barasch, J.), dated September 30, 1997, which denied its motion pursuant to CPLR 3215 for judgment against New York Surety Company, upon the latter’s default in answering the third-party complaint, and granted New York Surety Company’s cross motion to compel the appellant to accept service of its answer.

Ordered that the order is reversed, as a matter of discretion, with costs, the motion is granted, and the cross motion is denied.

The Supreme Court improvidently exercised its discretion in granting the motion of the third-party defendant New York Surety Company (hereinafter New York Surety) to compel the defendant third-party plaintiff Park Plaza Owners Corp. (hereinafter Park Plaza) to accept service of its answer, and in denying the motion of Park Plaza for a default judgment against New York Surety. In its motion papers, New York Surety failed to proffer a reasonable excuse for the three-month delay in answering the third-party complaint (see, CPLR 3012 [d]; Bardales v Blades, 191 AD2d 667). Moreover, the record indicates that New York Surety only served its answer in response to Park Plaza’s motion for a default judgment (see, Genen v McElroy, 213 AD2d 511; Special Prods. Mfg. v Douglass, 159 AD2d 847, 848; cf., Livigni v City of New York, 160 AD2d 684). Rosenblatt, J. P., Sullivan, Joy, Altman and Luciano, JJ., concur.