Martyn v. Jones

• Decision Date: 09 October 1990
• Citation: 560 N.Y.S.2d 789,166 A.D.2d 508
• Parties: Daniel MARTYN, Appellant, v. Richard JONES, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 789

560 N.Y.S.2d 789

166 A.D.2d 508

Daniel MARTYN, Appellant, v. Richard JONES, et al., Respondents.

Supreme Court, Appellate Division,

Second Department.

Oct. 9, 1990.

Purcell, Fritz & Ingrao, P.C., Mineola (Patrick J. Purcell, of counsel), for appellant.

J. Russell Clune, P.C., Mineola (Ronald J. Morelli, of counsel), for respondents.

Before MANGANO, P.J., and KUNZEMAN, KOOPER, SULLIVAN and RITTER, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for false arrest, malicious prosecution, and negligence, the plaintiff appeals from an order of the Supreme Court, Nassau County (McCabe, J.), dated April 27, 1989, which (1) denied his motion for leave to enter a default judgment and that the matter be set down for an inquest, and (2) granted the defendants' cross motion to compel the plaintiff to accept their answer and to extend their time to answer the plaintiff's complaint.

ORDERED that the order is reversed, as a matter of discretion, with costs, the motion is granted, the cross motion is denied, and the matter is remitted to the Supreme Court, Nassau County, for an inquest on the issue of damages.

The Supreme Court's denial of the plaintiff's motion and its granting of the defendants' cross motion was an improvident exercise of discretion. It was incumbent upon the defendants to show a reasonable excuse for the seven-month delay in serving their answer (CPLR 3012[d]; 5015[a]. In this case the only excuse offered was that on "receipt of the suit papers the matter was somehow overlooked by the insurance carrier". That excuse is insufficient under the circumstances of this case (see, Peters v. Pickard, 143 A.D.2d 81, 82, 531 N.Y.S.2d 332; Chochla v. Oak Beach Inn Corp., 115 A.D.2d 584, 585, 496 N.Y.S.2d 245).