Albano v. Holding Corp.

Full title: CARL ALBANO, Respondent, v. Nus HOLDING CORP., Appellant, et al., Defendant

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: Nov 4, 1996

233 A.D.2d 280 (N.Y. App. Div. 1996)

649 N.Y.S.2d 798

Opinion

November 4, 1996.

In an action to recover damages for personal injuries, the defendant Nus Holding Corp. appeals from an order of the Supreme Court, Westchester County (Rosato, J.), dated October 30, 1995, which granted the plaintiff's motion for a judgment against it upon that defendant's default in answering.

Before: Miller, J.P., Ritter, Sullivan, Friedmann and Krausman, JJ.

Ordered that the order is reversed, as an exercise of discretion, with costs, and the plaintiff's motion for a default judgment is denied.

The appellant contends that the Supreme Court should have excused its failure to serve a timely answer because its submissions demonstrated the existence of a meritorious defense to the action. We agree. In view of the limited information contained in the plaintiff's complaint regarding the nature of the alleged accident, the affidavit of the appellant's president and the appellant's proposed verified answer were sufficient to suggest the possibility of a meritorious defense. Moreover, the record shows that the appellant's default was not willful, and there is no indication that the plaintiff has been prejudiced by the delay. Under these circumstances, and in light of the public policy in favor of resolving cases on the merits, we find, as an exercise of discretion, that the appellant's delay in answering should be excused, and the plaintiffs motion for a default judgment denied ( see, Dowson v Forest Park Assocs., 228 AD2d 472; Polizzotto v Ultra Express Coach, 220 AD2d 568; Santos v City of New York, 204 AD2d 525).