Pickney v. Wood

• Decision Date: 20 September 1990
• Citation: 561 N.Y.S.2d 320,165 A.D.2d 949
• Parties: Adolph PICKNEY et al., Appellants, v. Walter S. WOOD, III, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 320

561 N.Y.S.2d 320

165 A.D.2d 949

Adolph PICKNEY et al., Appellants, v.Walter S. WOOD, III, Respondent.

Supreme Court, Appellate Division Third Department.

Sept. 20, 1990.

Maynard, O'Connor & Smith(Cory C. Kirchert, of counsel), Albany, for appellants.

Pemberton & Briggs(Paul Briggs, of counsel), Schenectady, for respondent.

Before MAHONEY, P.J., and KANE, CASEY, WEISS and MIKOLL, JJ.

MIKOLL, Justice.

Appeal from an order of the Supreme Court(Doran, J.), entered February 8, 1990 in Schenectady County, which, inter alia, granted defendant's motion for an extension of time to answer the complaint.

Plaintiffs moved for a default judgment against defendant on December 16, 1988 for damages incurred in an auto collision between vehicles driven by plaintiffAdolph Pickney and defendant.An interlocutory order of default was entered and the matter was thereafter adjourned several times for an inquest on the extent of damages, the last date being October 11, 1989.On September 6, 1989, attorneys representing defendant in a separate action against Pickney moved for an order compelling defendant's insurer, General Accident Insurance Company, to provide a defense and indemnification to defendant in this action.General Accident then assigned counsel to defendant.

On September 7, 1989defendant belatedly attempted to serve an answer which was rejected by plaintiffs' counsel.Thereafter, defendant moved for an order extending his time to answer.Supreme Court vacated the interlocutory order of default and granted defendant's motion to extend his time to answer.

We note prefatorily that the appropriate remedy in this case should have been by a motion to vacate the interlocutory order of default pursuant to CPLR 5015(a)(1).Although defendant failed to move under the appropriate rule, Supreme Court, for all intents and purposes, treated the matter as a motion pursuant to CPLR 5015(a)(1).For purposes of judicial economy, we shall review the matter as a motion under that provision.

In order to prevail on a motion to vacate an order of default, the defendant must supply an affidavit of merit, show excusable delay and lack of prejudice to the plaintiffs(Sanders, P.C. v. Sanders Architects, 140 A.D.2d 787, 527 N.Y.S.2d 660).Supreme Court found that defendant met this burden and opened the default judgment.We find that the record supports such a finding.On the question of merit, defendant's sworn examination before trial indicates that Pickney entered State Route 50 in the Town of Glenville, Schenectady County, from a private driveway, failing to cede the right-of-way to defendant who was traveling on Route 50 within the speed limit.Defendant indicates that he was unable to avoid the collision precipitated by...