Scottsdale Ins. Co. v. D D Insulation Inc.

• Decision Date: 18 October 2011
• Docket Number: Index No. 117089/2009
• Citation: 2011 NY Slip Op 32729
• Parties: SCOTTSDALE INSURANCE COMPANY, Plaintiff v. D D INSULATION INC., Defendant
• Court: New York Supreme Court

2011 NY Slip Op 32729

SCOTTSDALE INSURANCE COMPANY, Plaintiff
v.
D D INSULATION INC., Defendant

Index No. 117089/2009

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 46

DATED: May 2, 2011
Filed: October 18, 2011

DECISION AND ORDER

LUCY BILLINGS, J.S.C.:

Plaintiff sues to recover the balance of insurance premiums defendant owes for an insurance policy plaintiff provided to defendant at its request. After defendant failed to answer the complaint, plaintiff moved for a default judgment. C.P.L.R. § 3215(e). Upon oral argument, for the reasons explained below, the court denies plaintiff's motion.

I. DEFENDANT'S DEFAULT AND EXCUSE FOR DEFAULTING

Plaintiff shows it served the summons and complaint in this action on defendant by delivery to defendant's managing agent, who identified herself as "Jasmine" or "Jane," December 18, 2009. C.P.L.R. § 311(a)(1). Service by this means required defendant to serve an answer or responsive motion within 20 days after December 18, 2009. C.P.L.R. § 3012(a). See C.P.L.R. § 3012(c).

In opposition, defendant's President attests that defendant never employed a woman or anyone named "Jasmine", or "Jane" in December 2 009, never received the pleadings, and consequently never responded to them until defendant received and opposed

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plaintiff's motion for a default judgment. Even if this denial of service on defendant's managing agent or employee and of defendant's receipt is insufficient to dismiss the complaint, particularly without a motion to dismiss due to deficient service, C.P.L.R. § 3211(a)(8), this explanation at minimum furnishes a reasonable excuse for defendant's failure to answer. Cirillo v. Macy's, Inc., 61 A.D.3d 538, 540 (1st Dep't 2009); Jones v. 41 Equities LLC, 57 A.D.3d 65, 81 (1st Dep't 2008); Obermaier v. Fix, 25 A.D.3d 327 (1st Dep't 2006); Wilson v. Sherman Terrace Coop., Inc., 14 A.D.3d 367 (1st Dep't 2005).

II. APPLICABLE STANDARDS

Although defendant does not expressly move to extend its time to answer, C.P.L.R. § 3012(d), its opposition to plaintiff's motion does request permission to answer. Particularly in the context of a motion for a default judgment, the court may extend the time to answer absent a cross-motion for that relief. Id.; Vines v. Manhattan & Bronx Surface Tr. Operating Auth., 162 A.D.2d 229 (1st Dep't 1990); Willis v. City of New York, 154 A.D.2d 289, 290 (1st Dep't 1989); Mufalli v. Ford Motor Co., 105 A.D.2d 642, 643 (1st Dep't 1984). See Spira v. New York City Tr. Auth., 49 A.D.3d 478 (1st Dep't 2008); Tulley v. Straus, 265 A.D.2d 399, 401 (2d Dep't 1999).

C.P.L.R. § 3012(d) allows a late answer upon a "reasonable excuse for delay or default" and "such terms as may be just." Although the latter provision may include a showing of a meritorious defense, § 3012(d) does not specifically require a

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meritorious defense against plaintiff's claims, and such a showing is unnecessary to support acceptance of a late answer. Verizon N.Y. Inc. v. Case Constr. Co. Inc., 63 A.D.3d 521 (1st Dep't 2009); Cirillo v. Macy's, Inc., 61 A.D.3d at 540; Jones v. 41 Equities LLC, 57 A.D.3d at 81; Spira v. New York City Tr. Auth., 49 A.D.3d 478.

III. ALLOWING DEFENDANT'S LATE ANSWER

Defendant's explanation for failing to answer timely, absent any discernible prejudice to plaintiff, satisfactorily excuses his late answer. Gazes v. Bennett, 70 A.D.3d 579 (1st Dep't 2010); Verizon N.Y. Inc. v. Case Constr, Co. Inc., 63 A.D.3d 521; Cirillo v. Macy's, Inc., 61 A.D.3d at 540; Jones v. 41...