Smith v. Waldbaum's Supermarket, Inc.

99 A.D.2d 530, 471 N.Y.S.2d 316, 1984 N.Y. App. Div. LEXIS 16744

Opinion

In a negligence action to recover damages for personal injuries, etc., defendant appeals from an order of the Supreme Court, Westchester County (Sullivan, J.), entered June 15, 1983, which granted plaintiffs’ motion for a default judgment and denied defendant’s cross motion to compel acceptance of its answer. Order reversed, without costs or disbursements, plaintiffs’ motion denied and defendant’s cross motion granted. The defendant’s time to serve its answer is extended until 10 days after service upon it of a copy of the order to be made hereon, with notice of entry. Defendant’s delay in serving its answer should be excused. The period of delay, four days, is short, the excuse (the admittedly ongoing settlement negotiations between counsel) is reasonable, there is no prejudice to the plaintiffs, and defendant has tendered an affidavit of a witness attesting to a meritorious defense (see Q. P. I. Rests, v Slevin, 60 NY2d 676; Weissblum v Mostafzafan Foundation, 60 NY2d 637; Eddy v Tops Friendly Markets, 59 NY2d 692; Pazienza v Floral Pet, 98 AD2d 743). Titone, J. P., Gibbons, Thompson and Boyers, JJ., concur.