Parker v. I.E.S.I. N. Y. Corp.

Appellate Division of the Supreme Court of New York

Parker v. I.E.S.I. N. Y. Corp.

279 A.D.2d 395, 720 N.Y.S.2d 59, 2001 N.Y. App. Div. LEXIS 695

Appellate Division of the Supreme Court of the State of New York·Decided January 25, 2001·Published·Cited by 6 cases

Opinion

Order, Supreme Court, Bronx County (Anne Tar-gum, J.), entered on or about March 27, 2000, which denied plaintiff’s motion for a default judgment against defendant Schlegel and granted defendant’s cross motion, permitting him to serve an answer to the complaint, unanimously affirmed, without costs.

While defendant Schlegel, apparently through some oversight of his insurer, failed to timely answer the complaint, he had adequately established a meritorious defense. Further, plaintiff has failed to demonstrate that he suffered prejudice as the result of the delay. Since we have held that “[u]pon a showing of a lack of prejudice and a meritorious defense, a default judgment may be vacated and the action restored despite the existence of egregious law office failure” (Leary v Pou Poune, 273 AD2d 8), and since the negligence of the insurer is akin to law office failure (see, Barajas v Toll Bros., 247 AD2d 242; Murphy v D.V. Waste Control Corp., 124 AD2d 573; Ganvey Merchandising Corp. v Knudsen El. Corp., 169 AD2d 518), we now find that plaintiff’s motion for a default judgment against Schlegel was properly denied. Concur — Nardelli, J. P., Williams, Mazzarelli, Andrias and Saxe, JJ.

Reargument granted, and upon reargument, the Decision and Order of this Court entered herein on October 31, 2000 (276 AD2d 449), is hereby recalled and vacated.

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Order, Supreme Court, Bronx County (Anne Tar-gum, J.), entered on or about March 27, 2000, which denied plaintiff’s motion for a default judgment against defendant Schlegel and granted defendant’s cross motion, permitting him to serve an answer to the complaint, unanimously affirmed, without costs.

While defendant Schlegel, apparently through some oversight of his insurer, failed to timely answer the complaint, he had adequately established a meritorious defense. Further, plaintiff has failed to demonstrate that he suffered prejudice as the result of the delay. Since we have held that “[u]pon a showing of a lack of prejudice and a meritorious defense, a default judgment may be vacated and the action restored despite the existence of egregious law office failure” (Leary v Pou Poune, 273 AD2d 8), and since the negligence of the insurer is akin to law office failure (see, Barajas v Toll Bros., 247 AD2d 242; Murphy v D.V. Waste Control Corp., 124 AD2d 573; Ganvey Merchandising Corp. v Knudsen El. Corp., 169 AD2d 518), we now find that plaintiff’s motion for a default judgment against Schlegel was properly denied. Concur — Nardelli, J. P., Williams, Mazzarelli, Andrias and Saxe, JJ.

Reargument granted, and upon reargument, the Decision and Order of this Court entered herein on October 31, 2000 (276 AD2d 449), is hereby recalled and vacated.

Parker v. I.E.S.I. N. Y. Corp., 279 A.D.2d 395, 720 N.Y.S.2d 59, 2001 N.Y. App. Div. LEXIS 695 (N.Y. Ct. App. 2001).

Pincite

279 A.D.2d 395 (Parker v. I.E.S.I. N. Y. Corp.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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