Opinion
April 28, 1983
Order entered October 21, 1982 in Supreme Court, New York County (Scott, J.), denying third-party defendant Cushfield Maintenance Corp.'s motion to renew, unanimously reversed, on the law and the facts and in the exercise of discretion, the motion is granted, and upon renewal the motion to, in effect, set aside a default entered March 9, 1982 is granted, without costs. The delay here in serving the third-party notice of appearance and answer is not of the type which we can conclude constitutes "law office failure." (See, e.g., Eaton v Equitable Life Assur. Soc. of U.S., 56 N.Y.2d 900.) Rather, we find it to be the product of goodfaith efforts between the parties to resolve a dispute over a clause in an insurance policy, one interpretation of which would have obviated the need for the third-party action. Indeed, the record shows that appellant obtained, perforce of these negotiations, several extensions of time in which to answer. Obviously, then, this was not a "neglected" action which was overburdening to the court system ( Sortino v Fisher, 20 A.D.2d 25, 27), nor was respondent at all prejudiced. Accordingly, we vacate the default so that the issues can be determined on their merits.
Concur — Murphy, P.J., Sullivan, Carro, Milonas and Alexander, JJ.