Murphy v. D. V. Waste Control Corp.

124 A.D.2d 573, 507 N.Y.S.2d 717, 1986 N.Y. App. Div. LEXIS 61881

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 3, 1986
• Status: Published

Opinion

Although the length of the defendants’ delay in serving their answer (more than six months) cannot be considered minor (see, Association for Children with Learning Disabilities v Zafar, 115 AD2d 580; Klenk v Kent, 103 AD2d 1002, appeal dismissed 63 NY2d 953), and the only explanation proffered for the delay was the negligence of the defendants’ insurance broker, which is " 'akin to a law office failure’ ” Strasser v Pendino, 92 AD2d 590, quoting from Bruno v Village of Port Chester, 77 AD2d 580, appeal dismissed 51 NY2d 769), the court did not abuse its discretion in granting the defendants’ motion, given that the defendants have established a meritorious defense, the delay did not result in any prejudice to the plaintiffs and there was no showing that the delay was in any way deliberate (see, Tugendhaft v Country Estates Assoc., 111 AD2d 846; Stolpiec v Wiener, 100 AD2d 931). As we have often pointed out, there is a long-established policy favoring the resolution of cases on their merits (see, Tugendhaft v Country Estates Assoc., supra; Salch v Paratore, 100 AD2d 845). We note that the court conditioned the vacatur of the default judgment upon the insurance carrier’s payment to the plaintiffs of a $1,000 penalty (see, Tugendhaft v Country Estates Assoc., supra; Stolpiec v Wiener, supra). Mangano, J. P., Bracken, Brown and Fiber, JJ., concur.