Robinson v. USAA Casualty Insurance

97 A.D.2d 837, 468 N.Y.S.2d 913, 1983 N.Y. App. Div. LEXIS 20630

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 28, 1983
• Status: Published

Opinion

In an action to recover under an insurance policy, the defendant appeals from a judgment of the Supreme Court, Kings County (Goldman, J.), dated October 18, 1982, which denied its motion to, inter alia, compel plaintiff to accept its late answer. Order reversed, without costs or disbursements, and motion granted on condition that defendant pays to the plaintiff $1,000 and serves its answer; defendants’ time to comply with the conditions is extended until 20 days after service upon it of a copy of the order to be made hereon, with notice of entry. If the conditions are not complied with then order affirmed, with costs. On the totality of the circumstances recited and in light of the recent legislation that has served to repeal the BaraschEaton rule (Barasch v Micucci, 49 NY2d 594; Eaton v Equitable Life Assur. Soc., 56 NY2d 900; see CPLR 2005,3012, subd [d]; L1983, ch 318), we exercise our discretion to relieve the defendant of its default provided it meets the conditions we have set. However, we do not view those amendments as suggesting that there is no need to comply with the time requirements of the CPLR! Therefore, we have fixed an áppropriate sanction as a condition of the relief granted (see Tehan v Tehan, 97 AD2d 840; Mineroffv Macy’s & Co., 97 AD2d 535). Lazer, J. P., Thompson, O’Connor and Brown, JJ., concur.