Kimball v. Continental Assur. Co.

• Decision Date: 13 October 1983
• Citation: 97 A.D.2d 604,468 N.Y.S.2d 197
• Parties: Elizabeth J. KIMBALL, Respondent, v. CONTINENTAL ASSURANCE COMPANY, Also Known as CNA Insurance Company, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 197

468 N.Y.S.2d 197

97 A.D.2d 604

Elizabeth J. KIMBALL, Respondent, v. CONTINENTAL ASSURANCE COMPANY, Also Known as CNA Insurance Company, Appellant.

Supreme Court, Appellate Division Third Department.

Oct. 13, 1983.

Donohue, Donohue & Sabo, Albany (Kenneth G. Varley, Albany, of counsel), for appellant.

Rolf M. Sternberg, Hoosick Falls, for respondent.

Before MAHONEY, P.J., and SWEENEY, KANE, CASEY and YESAWICH, JJ.

MEMORANDUM DECISION.

Appeal (1) from an amended order of the Supreme Court at Special Term, entered January 6, 1983 in Rensselaer County, which denied defendant's motion for leave to serve an answer and granted plaintiff's cross motion for the entry of a default judgment, and (2) from the judgment entered thereon.

In the instant action, plaintiff seeks to recover on two policies of life insurance issued by defendant to plaintiff's late husband. The summons and complaint were duly served on November 3, 1982. Due to a misapprehension by an employee of defendant that it had 30 days in which to serve an answer, an answer was not served until November 29, 1982. Plaintiff's attorney rejected the answer as untimely and, by order to show cause signed December 3, 1982, defendant applied for leave to serve an answer. Plaintiff then cross-moved for the entry of a default judgment. Special Term denied defendant's motion and granted plaintiff's cross motion. This appeal by defendant ensued.

Although Special Term did not render a written decision, a review of the record reveals it found that defendant's delay in serving an answer was caused by circumstances akin to law office failure (see Bernard v. City School Dist. of Albany, 89 A.D.2d 676, 454 N.Y.S.2d 28, adhered to on rearg. 96 A.D.2d 995, 465 N.Y.S.2d 793). At the time Special Term rendered its decision, it was without discretion to excuse the failure to timely file an answer where the excuse was merely law office failure (Eaton v. Equitable Life Assur. Soc. of U.S., 56 N.Y.2d 900, 453 N.Y.S.2d 404, 438 N.E.2d 1119; Barasch v. Micucci, 49 N.Y.2d 594, 427 N.Y.S.2d 732, 404 N.E.2d 1275). However, subsequent to Special Term's order, amendments to the CPLR became effective which restored discretion, in situations such as this, to grant an extension of time to serve an answer (see Upright v. City of Kingston, 96 A.D.2d 1012, 467 N.Y.S.2d 97; State Farm Mut. Auto. Ins. Co. v. Viger, 94 A.D.2d 592, 464 N.Y.S.2d 857). Accordingly, pursuant to the policy of this court set forth upon the...