Opinion
2012-01-26
Thomas PUCHNER et al., Appellants, v. Jason NASTKE, Respondent, et al., Defendants.
The West Firm, P.L.L.C., Albany (Yvonne E. Hennessey of counsel), for appellants. William J. Better, Kinderhook, for respondent.
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.
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.
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 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 resolving cases on the merits” ( Rickert v. Chestara, 56 A.D.3d 941, 942, 867 N.Y.S.2d 262 [2008] [internal quotation marks and citations omitted]; accord Dinstber v. Allstate Ins. Co., 75 A.D.3d 957, 957–958, 906 N.Y.S.2d 636 [2010]; see Watson v. Pollacchi, 32 A.D.3d 565, 565, 819 N.Y.S.2d 612 [2006] ).
Here, defendant averred that, for financial reasons, he initially attempted to represent himself in what he presumed would be a frivolous lawsuit. Shortly after being served with the summons with notice, defendant twice submitted a notice of appearance and a demand for a complaint, to which plaintiffs eventually responded. After receiving the complaint, which consisted of nearly 300 numbered paragraphs encompassing 18 causes of action, defendant realized that he could no longer handle the matter on a pro se basis and thus retained an attorney. Counsel promptly attempted service of an answer upon plaintiffs and, upon plaintiffs' rejection of the answer as untimely, expeditiously moved to compel acceptance thereof. Under these circumstances, defendant's delay in answering did not reflect willfulness and “it is readily apparent that defendant[ ] did not intend to abandon [his] defense in this action” ( Rickert v. Chestara, 56 A.D.3d at 942, 867 N.Y.S.2d 262; accord Kostun v. Gower, 61 A.D.3d at 1308, 877 N.Y.S.2d 529; see Matter of Toyota Motor Credit Corp. v. Impressive Auto Ctr., Inc., 80 A.D.3d 861, 864, 915 N.Y.S.2d 657 [2011] ). Nor have plaintiffs asserted, and we are unable to discern, any prejudice inuring to them as a result of defendant's relatively brief delay. Furthermore, the affidavits submitted by defendant in support of the motion and the proposed verified answer sufficiently demonstrated the existence of arguably meritorious defenses ( see Acker v. Van Epps, 45 A.D.3d 1104, 1106, 845 N.Y.S.2d 561 [2007] ).
In view of this and considering the public policy favoring resolution of cases on the merits, we cannot conclude that Supreme Court improvidently exercised its discretion in granting defendant's cross motion to compel plaintiffs to accept service of his answer ( see Dinstber v. Allstate Ins. Co., 75 A.D.3d at 958–959, 906 N.Y.S.2d 636; Kostun v. Gower, 61 A.D.3d at 1308, 877 N.Y.S.2d 529; Rickert v. Chestara, 56 A.D.3d at 942, 867 N.Y.S.2d 262; Acker v. Van Epps, 45 A.D.3d at 1105–1106, 845 N.Y.S.2d 561; Bardi v. Mosher, 235 A.D.2d 869, 870, 653 N.Y.S.2d 45 [1997] ).
Although plaintiffs disputed certain factual allegations advanced by defendant in connection with his asserted meritorious defenses, defendant was only required to make a prima facie showing of legal merit to the defenses ( see Chase Manhattan Automotive Fin. Corp. v. Allstate Ins. Co., 272 A.D.2d 772, 773, 708 N.Y.S.2d 174 [2000]; David Sanders, P.C. v. Sanders, Architects, 140 A.D.2d 787, 789, 527 N.Y.S.2d 660 [1988] ). Thus, despite plaintiffs' assertions to the contrary, Supreme Court was not required to hold a hearing to resolve these factual issues before deciding the motion ( cf. Lopez v. Northern Assur. Co. of Am., 290 A.D.2d 628, 629, 735 N.Y.S.2d 253 [2002]; Scielzi v. Gold, 213 A.D.2d 872, 873, 624 N.Y.S.2d 66 [1995] ).
ORDERED that the order is affirmed, with costs.
ROSE, KAVANAGH, McCARTHY and GARRY, JJ., concur.