Mendoza v. Bi-County Paving

227 A.D.2d 302, 642 N.Y.S.2d 884

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 21, 1996
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Alan Saks, J.), entered on or about October 24, 1995, which granted defendant’s motion to vacate its default in appearing, unanimously affirmed, without costs.

The IAS Court properly treated defendant’s motion for leave to serve a late answer as one to vacate its default, where defendant had not received notice of the motion for a default judgment or of the ensuing order, and where the parties had adequate opportunity to address the issues relevant to vacatur. Defendant offered a reasonable excuse for its default, namely, that its broker misdirected the complaint to the wrong insurer, that its insurer then misplaced it, that settlement negotiations then made it prudent to delay service of an answer, and that it did not respond to the second and third motions for a default judgment because it never received notice thereof or of the ensuing orders. With respect to the merits, defendant raised compelling issues involving apportionment of liability and plaintiff’s own negligence. Plaintiff makes no showing of prejudice as a result of the delay. We have considered plaintiff’s other contentions and find them to be without merit. Concur— Sullivan, J. P., Milonas, Rubin, Tom and Mazzarelli, JJ.