Puchner v. Nastke

• Decision Date: 26 January 2012
• Citation: 91 A.D.3d 1261,2012 N.Y. Slip Op. 00456,936 N.Y.S.2d 792
• Court: New York Supreme Court — Appellate Division
• Parties: Thomas PUCHNER et al., Appellants, v. Jason NASTKE, Respondent, et al., Defendants.

2012 N.Y. Slip Op. 00456
91 A.D.3d 1261
936 N.Y.S.2d 792

Thomas PUCHNER et al., Appellants,
v.
Jason NASTKE, Respondent, et al., Defendants.

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

Jan. 26, 2012.

[936 N.Y.S.2d 793]

The West Firm, P.L.L.C., Albany (Yvonne E. Hennessey of counsel), for appellants.

William J. Better, Kinderhook, for respondent.

Before: PETERS, J.P., ROSE, KAVANAGH, McCARTHY and GARRY, JJ.

PETERS, J.P.

[91 A.D.3d 1261] Appeal from an order of the Supreme Court (McGrath, J.), entered October 14, 2010 in Columbia County, which, among other things, granted defendant Jason Nastke's cross motion for leave to serve an answer.

[936 N.Y.S.2d 794]

Plaintiffs commenced this action in December 2009 alleging, among other things, negligence and breach of contract arising from the construction and sale of their home in the Village of Valatie, Columbia County. Defendant Jason Nastke (hereinafter defendant) was personally served with a summons with notice on April 19, 2010. Unrepresented by counsel, he attempted to serve plaintiffs with a notice of appearance and demand for complaint on May 11, 2010 and May 20, 2010, but each attempt was rejected as untimely. Nevertheless, plaintiffs served defendant with a verified complaint on June 1, 2010. Defendant retained an attorney in early August and, on August 18, 2010, served plaintiffs with a verified answer. Plaintiffs rejected the answer as untimely and thereafter moved for a default judgment against defendant. Defendant opposed plaintiffs' application and cross-moved for an order compelling plaintiffs to accept service of the answer. Supreme Court denied plaintiffs' motion and granted defendant's cross motion, prompting this appeal.

We affirm. Supreme Court possesses the discretion to permit late service of an answer upon a showing of a reasonable excuse [91 A.D.3d 1262] for the delay and a meritorious defense to the complaint ( see CPLR 3012[d]; Williams v. Charlew Constr. Co., Inc., 82 A.D.3d 1491, 1492, 918 N.Y.S.2d 764 [2011]; Kostun v. Gower, 61 A.D.3d 1307, 1308, 877 N.Y.S.2d 529 [2009]; Huckle v. CDH Corp., 30 A.D.3d 878, 879, 817 N.Y.S.2d 707 [2006] ). “[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...