Summary
In Bungay v Jay Power Products, Inc. (243 AD2d 527 [2d Dept 1997]), the Second Department declined to enter a default judgment against the defendant where the delay in service was short and not willful and the plaintiff was not prejudiced the delay.
Summary of this case from In re Petition of Simone Levitt for Turnover of AssetsOpinion
October 14, 1997
Appeal from the Supreme Court, Queens County (Lisa, J.).
Ordered that the appeals insofar as they relate to the denial of reargument are dismissed, without costs or disbursements, as no appeal lies from the denial of reargument; and it is further,
Ordered that the orders dated July 2, 1996, are affirmed, without costs or disbursements; and it is further,
Ordered that the order dated December 10, 1996, is affirmed insofar as reviewed, without costs or disbursements.
The Supreme Court properly denied the third-party plaintiff's motion for leave to enter a default judgment against the third-party defendant, notwithstanding the latter's failure to interpose a timely answer to the third-party complaint. Although the third-party defendant conceded that its delay in serving its answer was due to "law office failure", the record indicates that the delay in service was short and not willful, and that the third-party plaintiff was not prejudiced thereby (see, CPLR 3012 [d]; A J Concrete Corp. v. Arker, 54 N.Y.2d 870; Junior v City of New York, 85 A.D.2d 683).
The third cause of action alleged that the third-party defendant agreed to procure insurance coverage for a certain project and to carry "such additional insurance" as the third-party plaintiff may specify, that after entering into the agreement, the third-party plaintiff or its agent requested that the third-party defendant obtain general liability insurance naming the third-party plaintiff as an additional insured, and that the third-party defendant failed to comply with such request. We conclude that the third-party plaintiff's third cause of action states a claim upon which relief could be granted ( cf., Keelan v. Sivan, 234 A.D.2d 516).
We have considered the parties' remaining contentions and find them to be without merit.
Rosenblatt, J.P., Copertino, Krausman and Goldstein, JJ., concur.