Kondolf v. National Grange Mutual Insurance

Appellate Division of the Supreme Court of New York

Kondolf v. National Grange Mutual Insurance

259 A.D.2d 1021, 689 N.Y.S.2d 891, 1999 N.Y. App. Div. LEXIS 3413

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

DecidedMarch 31, 1999

StatusPublished

Cited by4 cases

This text of 259 A.D.2d 1021 (Kondolf v. National Grange Mutual Insurance) 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

Kondolf v. National Grange Mutual Insurance, 259 A.D.2d 1021, 689 N.Y.S.2d 891, 1999 N.Y. App. Div. LEXIS 3413 (N.Y. Ct. App. 1999).

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Opinion

Order unanimously affirmed without costs. Memorandum: Supreme Court did not abuse its discretion in denying plaintiffs motion for a default judgment pursuant to CPLR 3215 (a) and in granting defendant’s cross motion for an order pursuant to CPLR 2004 and 3012 (d) compelling acceptance of the answer. Defendant established that its delay in answering the complaint was the result of an inadvertent error of one of its claims representatives (see, De Nooyer Chevrolet v Polsinello Fuels, 251 AD2d 871; Chu-Reimer v Metpath, Inc., 227 AD2d 860, 861; Jones v R.S.R. Corp., 135 AD2d 900, 901) and that it has a meritorious defense (see, R.C.S. Farmers Mkts. Corp. v Great Am. Ins. Co., 56 NY2d 918, 920). There is no proof that the default was willful or that plaintiff was prejudiced by defendant’s delay in serving the answer (see, Heinrichs v City of Albany, 239 AD2d 639). Plaintiff failed to preserve for our review her contention that the court abused its discretion in refusing to order sanctions. (Appeal from Order of Supreme Court, Ontario County, Scudder, J. — Default Judgment.) Present — Pine, J. P., Hayes, Wisner, Pigott, Jr., and Hurlbutt, JJ.

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Order unanimously affirmed without costs. Memorandum: Supreme Court did not abuse its discretion in denying plaintiffs motion for a default judgment pursuant to CPLR 3215 (a) and in granting defendant’s cross motion for an order pursuant to CPLR 2004 and 3012 (d) compelling acceptance of the answer. Defendant established that its delay in answering the complaint was the result of an inadvertent error of one of its claims representatives (see, De Nooyer Chevrolet v Polsinello Fuels, 251 AD2d 871; Chu-Reimer v Metpath, Inc., 227 AD2d 860, 861; Jones v R.S.R. Corp., 135 AD2d 900, 901) and that it has a meritorious defense (see, R.C.S. Farmers Mkts. Corp. v Great Am. Ins. Co., 56 NY2d 918, 920). There is no proof that the default was willful or that plaintiff was prejudiced by defendant’s delay in serving the answer (see, Heinrichs v City of Albany, 239 AD2d 639). Plaintiff failed to preserve for our review her contention that the court abused its discretion in refusing to order sanctions. (Appeal from Order of Supreme Court, Ontario County, Scudder, J. — Default Judgment.) Present — Pine, J. P., Hayes, Wisner, Pigott, Jr., and Hurlbutt, JJ.

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Bluebook (online)

259 A.D.2d 1021, 689 N.Y.S.2d 891, 1999 N.Y. App. Div. LEXIS 3413, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kondolf-v-national-grange-mutual-insurance-nyappdiv-1999.

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