Accetta v. Simmons

• Decision Date: 05 July 2013
• Citation: 2013 N.Y. Slip Op. 05146,969 N.Y.S.2d 339,108 A.D.3d 1096
• Parties: Anne M. ACCETTA, Plaintiff–Appellant, v. Afton R. SIMMONS, Defendant–Respondent.
• Court: New York Supreme Court — Appellate Division

108 A.D.3d 1096

969 N.Y.S.2d 339

2013 N.Y. Slip Op. 05146

Anne M. ACCETTA, Plaintiff–Appellant,

v.Afton R. SIMMONS, Defendant–Respondent.

Supreme Court, Appellate Division, Fourth Department, New York.

July 5, 2013.

Law Office of Jacob P. Welch, Corning (Michael A. Donlon of Counsel), for Plaintiff–Appellant.

Rupp, Baase, Pfalzgraf, Cunningham & Coppola LLC, Rochester (Matthew A. Lenhard of Counsel), for Defendant–Respondent.

PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, AND VALENTINO, JJ.

MEMORANDUM:

In this personal injury action arising from a motor vehicle accident, plaintiff appeals from an order that denied her motion for a default judgment and granted defendant's cross motion seeking, inter alia, to compel plaintiff to acceptservice of the late answer. Contrary to plaintiff's contention, Supreme Court did not abuse its discretion in denying the motion and granting the cross motion.

It is well settled that “ ‘[p]ublic policy favors the resolution of a case on the merits, and a court has broad discretion to grant relief from a pleading default if there is a showing of merit to the defense, a reasonable excuse for the delay and it appears that the delay did not prejudice the other party’ ” ( Case v. Cayuga County, 60 A.D.3d 1426, 1427, 875 N.Y.S.2d 705,lv. dismissed13 N.Y.3d 770, 886 N.Y.S.2d 869, 915 N.E.2d 1167). Furthermore, “[t]he determination whether an excuse is reasonable lies within the sound discretion of the motion court” ( Lauer v. City of Buffalo, 53 A.D.3d 213, 217, 862 N.Y.S.2d 675;see Armele v. Moose Intl., 302 A.D.2d 986, 987, 755 N.Y.S.2d 149). Here, defendant met her burden with respect to a meritorious defense by demonstrating that there is factual support for her defenses ( see generally Davidson v. Straight Line Contrs., Inc., 75 A.D.3d 1143, 1144, 905 N.Y.S.2d 811;Evolution Impressions, Inc. v. Lewandowski, 59 A.D.3d 1039, 1040, 873 N.Y.S.2d 405).

Contrary to plaintiff's further contention, defendant provided a reasonable excuse for the delay in serving an answer. Defendant submitted evidence establishing that she notified her insurer that an action had been commenced against her, but the insurance company's representative misunderstood the conversation and took no action to begin the process of providing an attorney to represent her. The insurer promptly provided an attorney after defendant sent it a copy of the complaint, however, and also attempted to contact plaintiff's attorney regarding the matter. In addition, the attorney sent the answer to plaintiff's attorney within 40 days after the deadline for timely service had passed. We agree with defendant that she thereby demonstrated a reasonable excuse for her default, “which resulted from the inadvertence of [defendant]'s liability insurer” ( Hayes v. R.S. Maher & Son, 303 A.D.2d 1018, 1018, 756 N.Y.S.2d 811;see Dodge v. Commander, 18 A.D.3d 943, 945, 794 N.Y.S.2d 482;see generally Crandall v. Wright Wisner Distrib. Corp., 59 A.D.3d 1059,...