Opinion
2007-1217 K C.
Decided July 10, 2008.
Appeal from an order of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.), entered June 20, 2007. The order granted defendant's motion to compel acceptance of his late answer and denied plaintiff's cross motion for an inquest and default judgment.
Order modified by providing that defendant's motion to compel acceptance of his late answer is denied; as so modified, affirmed without costs.
PRESENT: RIOS, J.P., PESCE and GOLIA, JJ.
In this action to recover damages for personal injuries arising from an automobile accident, the court below should have denied both defendant's motion to compel acceptance of his late answer and plaintiff's cross motion seeking an inquest and default judgment. The Appellate Division, Second Department, has held that when a defendant who has failed to answer the complaint seeks to compel acceptance of a late answer, the defendant "must provide a reasonable excuse for the default and demonstrate a meritorious defense to the action" ( Juseinoski v Board of Educ. of City of N.Y., 15 AD3d 353, 356; see Guzetti v City of New York, 32 AD3d 234). In the instant matter, with regard to setting forth an excuse for the delay in serving a timely answer, defendant merely submitted an affirmation from his newly retained counsel stating, in bald and conclusory terms, that the delay was due to "problems" or law office failure in defendant's insurer's in-house counsel's office. It has been observed that "[a]n insurance carrier's delay is insufficient to establish a reasonable excuse for a default" ( Juseinoski, 15 AD3d at 356).
With regard to a showing of a meritorious defense, there were only the hearsay statements of counsel that defendant's vehicle was the last one in a four-car chain accident on the Franklin Delano Roosevelt Drive in New York City, that plaintiff's vehicle was the first, and that plaintiff did not sustain a serious injury as statutorily defined (Insurance Law § 5102 [d]).
In view of the foregoing and in light of the fact that plaintiff is not deemed to have accepted the untimely answer by virtue of his attorney's retention of it for approximately a week before returning it ( see generally Manhattan King David Rest. v Nathanson, 269 AD2d 297), the Civil Court improvidently exercised its discretion in granting defendant's motion to compel acceptance of a late answer ( see Hosten v Oladapo, 44 AD3d 1006; Bekker v Fleischman, 35 AD3d 334; Juseinoski, 15 AD3d at 355-356; cf. Vehicle and Traffic Law § 253). However, we leave undisturbed so much of the order as denied plaintiff's cross motion seeking an inquest and default judgment since such relief is not available in the absence of an affidavit of facts constituting the claim (CPLR 3215 [f]; CCA 1402; see Grinage v City of New York, 45 AD3d 729).
We pass on no other issue.
Accordingly, the order is modified to provide that defendant's motion to compel acceptance of his late answer is denied.
Rios, J.P., and Pesce, J., concur.
Golia, J., concurs in a separate memorandum.
While I agree with the ultimate disposition in the decision reached by the majority, I wish to note that I am constrained to agree with certain propositions of law set forth in cases cited therein which are inconsistent with my position and generally contrary to my views.
However, I find that the exercise of discretion by the lower court in granting defendant's motion to compel the late acceptance of his answer was not warranted under the facts and circumstances presented in this case. More specifically, defendant was provided with a copy of the summons and complaint, as well as actual notice of their service, more than 20 days before the 30-day period in which to answer commenced by the filing of the proof of service (CCA 402 [b]; 410 [b]).