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

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.