Opinion
2002-02955
Submitted September 4, 2002.
September 24, 2002.
In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Price, J.), dated February 15, 2002, which granted the defendant's motion to compel the plaintiff to accept his answer, and denied his cross motion for leave to enter judgment on the issue of liability upon the defendant's default in answering, and for an inquest on the issue of damages.
Jose R. Mendez, Rego Park, N.Y., for appellant.
Robert P. Tusa (Sweetbaum Sweetbaum, Lake Success, N.Y. [Marshall D. Sweetbaum] of counsel), for respondent.
Before: ANITA R. FLORIO, J.P., CORNELIUS J. O'BRIEN, WILLIAM D. FRIEDMANN, THOMAS A. ADAMS, STEPHEN G. CRANE, JJ.
ORDERED that the order is reversed, on the law and as a matter of discretion, with costs, the motion is denied, the cross motion is granted, and the matter is remitted to the Supreme Court, Queens County, for an inquest on the issue of damages.
The Supreme Court improvidently exercised its discretion in granting the defendant's motion to compel the plaintiff to accept his answer and in denying the plaintiff's cross motion for leave to enter judgment on the issue of liability upon the defendant's default. The defendant failed to proffer a reasonable excuse for the six-week delay in answering the complaint and failed to demonstrate that he has a meritorious defense (see Rockland County Patrolmen's Benevolent Assn. v. Town of Clarkstown, 288 A.D.2d 456; Palermo v. Rodriguez, 255 A.D.2d 567). To justify his delay in answering the complaint, the defendant submitted his attorney's affirmation asserting, without detail, that the delay was caused by the defendant's insurance carrier. The affirmation was insufficient to establish an excusable default (see Warn v. Choi-Lee, 291 A.D.2d 490; Hazen v. Bottiglieri, 286 A.D.2d 708; Miles v. Blue Label Trucking, 232 A.D.2d 382; Peters v. Pickard, 143 A.D.2d 81, 82).
Furthermore, the plaintiff submitted proof of service of the summons and the complaint, and an affidavit of the facts constituting the claim (see CPLR 3215[f]). Therefore, the plaintiff should have been granted leave to enter judgment on the issue of liability in his favor.
FLORIO, J.P., O'BRIEN, FRIEDMANN, ADAMS and CRANE, JJ., concur.