Yu v. Vantage Management Services, LLC

85 A.D.3d 564, 925 N.Y.S.2d 475

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 16, 2011
• Status: Published

Opinion

Order, Supreme Court, New York County (O. Peter Sherwood, J), entered May 13, 2010, which, to the extent appealed from as limited by the briefs, granted defendants’ motion to vacate a default judgment, unanimously affirmed, without costs.

In light of the strong public policy of this State to dispose of cases on their merits, the brief delay involved, the defendant’s lack of willfulness, and the absence of prejudice to the plaintiffs, Supreme Court providently exercised its discretion in vacating the default and granting the defendant leave to interpose an answer (see New York & Presbyt. Hosp. v American Home Assur. Co., 28 AD3d 442 [2006]). Defendants asserted a reasonable excuse for the default, i.e. insurance company delay in determining coverage for a claim alleging toxic mold (see Seccombe v Serafina Rest. Corp., 2 AD3d 516 [2003]), the delay in answering was relatively minimal, a potentially meritorious defense was demonstrated by affidavit, and no prejudice to plaintiffs was shown to have resulted in the delay (see Siwek v Phillips, 71 AD3d 469 [2010]; Arrington v Bronx Jean Co., Inc., 76 AD3d 461 [2010]).

We also note that defendants actually served and filed an answer before plaintiffs applied ex parte for a default, and promptly moved to vacate. Further, the additional delay in plaintiffs’ receipt of defendants’ answer was attributable to plaintiffs having moved from the address indicated on the summons and complaint. Concur — Andrias, J.P., Friedman, Sweeny, Renwick and Román, JJ.