Kaiser v. Delaney

Appellate Division of the Supreme Court of New York

Kaiser v. Delaney

255 A.D.2d 362, 679 N.Y.S.2d 686, 1998 N.Y. App. Div. LEXIS 11825

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 9, 1998

StatusPublished

Cited by14 cases

This text of 255 A.D.2d 362 (Kaiser v. Delaney) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kaiser v. Delaney, 255 A.D.2d 362, 679 N.Y.S.2d 686, 1998 N.Y. App. Div. LEXIS 11825 (N.Y. Ct. App. 1998).

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Opinion

—In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Henry, J.), dated February 24, 1998, as (1) denied those branches of their motion which were for leave to enter a judgment against the defendants South Bay Water Taxi and John Sanders upon their default in answering the complaint, and to have the matter set down for an inquest, and (2) granted the cross motion of the defendants South Bay Water Taxi and John Sanders to compel the plaintiffs to accept their answer.

Ordered that the order is affirmed insofar as appealed from, with costs.

The Supreme Court providently exercised its discretion in compelling the plaintiffs to accept the verified answer of South Bay Water Taxi and John Sanders, which was untimely served (see, CPLR 3012 [d]; Mondrone v Lakeview Auto Sales & Serv., 170 AD2d 586). Considering the absence of prejudice to the plaintiffs, the meritorious nature of the defense, and the public policy in favor of resolving cases on the merits, we agree that the 2V2-month delay in serving the answer should be excused (see, CPLR 2005; Van Man Adhesives Corp. v City of New York, 236 AD2d 465; Albin v First Nationwide Network Mtge. Co., 188 AD2d 575; I.J. Handa, P. C. v Imperato, 159 AD2d 484). Mangano, P. J., Joy, Friedmann and Goldstein, JJ., concur.

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—In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Henry, J.), dated February 24, 1998, as (1) denied those branches of their motion which were for leave to enter a judgment against the defendants South Bay Water Taxi and John Sanders upon their default in answering the complaint, and to have the matter set down for an inquest, and (2) granted the cross motion of the defendants South Bay Water Taxi and John Sanders to compel the plaintiffs to accept their answer.

Ordered that the order is affirmed insofar as appealed from, with costs.

The Supreme Court providently exercised its discretion in compelling the plaintiffs to accept the verified answer of South Bay Water Taxi and John Sanders, which was untimely served (see, CPLR 3012 [d]; Mondrone v Lakeview Auto Sales & Serv., 170 AD2d 586). Considering the absence of prejudice to the plaintiffs, the meritorious nature of the defense, and the public policy in favor of resolving cases on the merits, we agree that the 2V2-month delay in serving the answer should be excused (see, CPLR 2005; Van Man Adhesives Corp. v City of New York, 236 AD2d 465; Albin v First Nationwide Network Mtge. Co., 188 AD2d 575; I.J. Handa, P. C. v Imperato, 159 AD2d 484). Mangano, P. J., Joy, Friedmann and Goldstein, JJ., concur.

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Bluebook (online)

255 A.D.2d 362, 679 N.Y.S.2d 686, 1998 N.Y. App. Div. LEXIS 11825, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kaiser-v-delaney-nyappdiv-1998.

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