CPLR § 3012 Service of pleadings and demand for complaint
(d) Extension of time to appear or plead
CPLR § 2005 Excusable delay or default
Dinstber v Allstate Ins. Co., 2010 NY Slip Op 06200 (App. Div., 3rd 2010)
Plaintiff served a summons and verified complaint on the Insurance
Department on July 29, 2008 pursuant to Insurance Law § 1212. However,
defendant allegedly did not receive them until August 21, 2008. Although
defendant served an answer on August 28, 2008, plaintiff rejected it
because it was not verified. On September 4, 2008 — one day after
receiving plaintiff's letter of rejection — defendant served a second
answer, virtually identical to the first but properly verified, which
was rejected by plaintiff as untimely. Defendant then promptly moved to
extend its time to answer and to compel plaintiff to accept late service
thereof. Plaintiff cross-moved for a default judgment. Supreme Court
granted defendant's motion — giving defendant 30 days to file, serve and
file proof of service of the second answer — and denied plaintiff's
cross motion. Plaintiff now appeals and we affirm.
[*2]Pursuant to CPLR 3012 (d),
Supreme Court has the discretion to permit late service of an answer
upon the demonstration of a reasonable excuse for the delay or default (see Rickert v Chestara, 56 AD3d 941, 942 [2008]; Watson v Pollacchi, 32 AD3d 565,
565 [2006]). "To that end, '[w]hether there is a reasonable excuse for a
default is a discretionary, sui generis determination to be made by the
court based on all relevant factors, including the extent of the delay,
whether there has been prejudice to the opposing party, whether there
has been willfulness, and the strong public policy in favor of resolving
cases on the merits'" (Rickert v Chestara, 56 AD3d at 942, quoting Harcztark v Drive Variety, Inc., 21 AD3d 876, 876-877 [2005]; see Watson v Pollacchi, 32 AD3d at 565). Also relevant is whether the untimely answer sets forth a meritorious defense to plaintiff's complaint (see Rickert v Chestara, 56 AD3d at 942; Watson v Pollacchi, 32 AD3d at 565).Here, contrary to plaintiff's assertion, we find that defendant
proffered both a reasonable excuse for its delay in serving a verified
answer and a sufficiently meritorious defense to the claims. Defendant
proffered several reasons for its delay. First, defendant submitted
evidence that it did not actually receive the complaint from the
Insurance Department until one week before the time to answer expired
and that an incorrect date of service on the transmittal sheet caused
further delay in the complaint being referred to counsel. After
unsuccessfully attempting to contact plaintiff to obtain an extension of
time to serve an answer, defendant effected such service one day after
counsel's receipt of the complaint. Secondly, defendant alleged law
office failure in neglecting to include the verification with the
initial answer, which was timely served. In our view, these
circumstances established a reasonable excuse for the default (see CPLR 2005).
We also note that defendant's answer set forth a myriad of
defenses including, among others, failure to state a cause of action,
failure to comply with the terms and conditions of the policy, fraud or
perjury on plaintiff's part and that the claim is time-barred. In
addition, defendant's attorney provided Supreme Court with the original
denial of coverage letter, which set forth in detail the reasons why
plaintiff's claim for benefits was denied. Such assertions set forth a
sufficiently meritorious defense for purposes of defendant's motion (see Chase Manhattan Automotive Fin. Corp. v Allstate Ins. Co., 272 AD2d 772, 774-775 [2000]).In view of defendant's reasonable excuse for the default, the
minimal delay, defendant's expeditious motion to compel acceptance of
the answer, the absence of proof that the default was willful or any
indication that plaintiff was prejudiced by the delay, and the existence
of an arguably meritorious defense, we conclude that Supreme Court's
decision to grant defendant's motion to extend the time to answer and to
compel plaintiff to accept service was a proper exercise of its
discretion (see Rickert v Chestara, 56 AD3d at 942; Acker v VanEpps, 45 AD3d 1104, 1105, 1106 [2007]).
The bold is mine.
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