Opinion
CA 02-02384
March 21, 2003.
Appeal from an order of Supreme Court, Erie County (Sconiers, J.), entered January 7, 2002, which granted the motion of defendant R.S. Maher Son, Inc. to vacate a default judgment.
PHILLIPS, LYTLE, HITCHCOCK, BLAINE HUBER LLP, BUFFALO (JOHN M. CURRAN OF COUNSEL), FOR PLAINTIFFS-APPELLANTS.
GIBSON, McASKILL CROSBY, LLP, BUFFALO (SHAMUS B. MULDERIG OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.
PRESENT: HURLBUTT, J.P., KEHOE, GORSKI, LAWTON, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum:
This action seeks damages for serious injuries allegedly sustained by plaintiff Dean C. Hayes as a result of a collision between his pickup truck and a Mack truck owned by defendant R.S. Maher Son, Inc. (Maher). Plaintiffs appeal from an order of Supreme Court granting the motion of Maher to vacate a default judgment previously entered against it as a consequence of its failure to answer the complaint. The court properly granted Maher's motion. Maher demonstrated a meritorious defense to the action and reasonable excuse for its default (see Di Lorenzo, Inc. v. Dutton Lbr. Co., 67 N.Y.2d 138, 141; see also Massachusetts Asset Fin. Corp. v. Di Laura, 299 A.D.2d 948; Yacone v. Ryan Homes, 216 A.D.2d 963), which resulted from the inadvertence of Maher's liability insurer (see generally Castillo v. Garzon-Ruiz, 290 A.D.2d 288, 290; Parker v. I.E.S.I. N.Y. Corp., 279 A.D.2d 395, lv dismissed 96 N.Y.2d 927; Kondolf v. National Grange Mut. Ins. Co., 259 A.D.2d 1021; Barajas v. Toll Bros., 247 A.D.2d 242; Chu-Reimer v. Metpath, Inc., 227 A.D.2d 860, 861). "Given the brief overall delay, the promptness with which [Maher] moved to vacate the judgment, the lack of any intention on [Maher's] part to abandon the action, plaintiffs' failure to demonstrate any prejudice attributable to the delay, and the preference for resolving disputes on the merits, we conclude that [Maher's] [brief] default in appearing [was properly] excused" (Mayville v. Wal-Mart Stores, 273 A.D.2d 944, 945; see Massachusetts Asset Fin. Corp., 299 A.D.2d at 948-949).