Opinion
5677N Index 156930/15
02-08-2018
TERTIARY, INC., Plaintiff–Respondent, v. LIBERTY MUTUAL FIRE INSURANCE COMPANY, et al., Defendants–Appellants.
Jaffe & Asher LLP, New York (Marshall T. Potashner of counsel), for appellants. Pillsbury Winthrop Shaw Pittman, LLP, New York (Alexander D. Hardiman of counsel), for respondent.
Jaffe & Asher LLP, New York (Marshall T. Potashner of counsel), for appellants.
Pillsbury Winthrop Shaw Pittman, LLP, New York (Alexander D. Hardiman of counsel), for respondent.
Friedman, J.P., Sweeny, Kahn, Gesmer, Singh, JJ.
Order, Supreme Court, New York County (Kelly O'Neill Levy, J.), entered July 19, 2016, which granted plaintiff's motion for a default judgment and denied defendants' motion to compel acceptance of an answer, unanimously reversed, on the law and the facts, and in the exercise of discretion, without costs, plaintiff's motion denied, and defendants' motion granted.
Plaintiff failed to establish prima facie that it is entitled to a default judgment declaring that defendants are obligated to defend and indemnify it in a personal injury action (see Woodson v. Mendon Leasing Corp., 100 N.Y.2d 62, 71, 760 N.Y.S.2d 727, 790 N.E.2d 1156 [2003] ; AMEC Constr. Mgt., Inc. v. City of New York, 132 A.D.3d 547, 549, 19 N.Y.S.3d 30 [1st Dept. 2015] ), since it has not been sued in that action (see QBE Ins. Corp. v. Adjo Contr. Corp., 121 A.D.3d 1064, 1080, 997 N.Y.S.2d 425 [2d Dept. 2014] ; Sirignano v. Chicago Ins. Co., 192 F.Supp.2d 199, 206 [S.D.N.Y.2002] ).
In view of defendants' excuse for their default in answering the complaint, namely, that a clerical error prevented the matter from reaching the appropriate individuals in the companies, as well as the absence of willfulness, the fact that plaintiff has not claimed prejudice, and counsel's prompt action upon discovering the error, we find that the motion to compel should be granted (see e.g. Interboro Ins. Co. v. Perez, 112 A.D.3d 483, 483, 976 N.Y.S.2d 378 [1st Dept. 2013] ; Gamiel v. Sullivan & Liapakis, 254 A.D.2d 96, 679 N.Y.S.2d 282 [1st Dept. 1998] ; Elkman v. Southgate Owners Corp., 243 A.D.2d 356, 665 N.Y.S.2d 251 [1st Dept. 1997] ).