Opinion
2018-2484 K C
11-13-2020
HEALTHWAY MEDICAL CARE, P.C., as Assignee of Nazario, Enid, Respondent, v. GEICO INS. CO., Appellant.
Law Office of Goldstein, Flecker & Hopkins (Lawrence J. Chanice of counsel), for appellant. The Rybak Firm, PLLC, (Oleg Rybak of counsel), for respondent (no brief filed).
Law Office of Goldstein, Flecker & Hopkins (Lawrence J. Chanice of counsel), for appellant.
The Rybak Firm, PLLC, (Oleg Rybak of counsel), for respondent (no brief filed).
PRESENT: THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, BERNICE D. SIEGAL, JJ
Appeal from an order of the Civil Court of the City of New York, Kings County ( Sharon Bourne-Clarke, J.), entered November 15, 2018. The order denied defendant's motion to vacate a judgment of that court entered July 26, 2018 upon defendant's failure to appear or answer the complaint and, in effect, to compel plaintiff, pursuant to CPLR 3012 (d), to accept defendant's late answer.
ORDERED that the order is reversed, with $30 costs, defendant's motion to vacate the default judgment and, in effect, to compel plaintiff, pursuant to CPLR 3012 (d), to accept defendant's late answer is granted.
" ‘A party seeking to vacate a default in appearing or answering pursuant to CPLR 5015 (a) (1), and thereupon to serve a late answer, must demonstrate a reasonable excuse for the default and a potentially meritorious defense to the action’ ( Hamilton Pub. Relations v. Scientivity, LLC , 129 AD3d 1025, 1025 [2015] ). The determination of what constitutes a reasonable excuse lies within the sound discretion of the trial court, and in the exercise of that discretion, the court may accept law office failure as an excuse (see CPLR 2005 ; Mollica v. Ruzza , 151 AD3d 714 [2017] ; Madonna Mgt. Servs., Inc. v. R.S. Naghavi M.D. PLLC , 123 AD3d 986 [2014] )" ( Government Empls. Ins. Co. v. Avenue C Med., P.C. , 166 AD3d 857, 859 [2018] ). Here, the affirmation of defendant's counsel and the affidavit from the secretarial supervisor in counsel's office were sufficient to establish that the failure to timely serve and file defendant's answer was not willful but due to law office failure (see CPLR 2005 ; Government Empls. Ins. Co. , 166 AD3d 857 ; Valure v. Century 21 Grand , 35 AD3d 591 [2006] ). In addition, defendant demonstrated the existence of potentially meritorious defenses.
Under the circumstances here, particularly in light of the evidence that defendant's delay was not willful, the lack of prejudice to plaintiff resulting from defendant's short delay in appearing and seeking to answer the complaint, the existence of a potentially meritorious defense, and the strong public policy favoring the resolution of cases on the merits, the Civil Court improvidently exercised its discretion in denying defendant's motion to vacate the default judgment and to compel plaintiff to accept a late answer (see CPLR 2005, 3012 [d] ; 5015 [a] [1]; Government Empls. Ins. Co. , 166 AD3d 857 ).
Accordingly, the order is reversed and defendant's motion to vacate the default judgment and, in effect, to compel plaintiff, pursuant to CPLR 3012 (d), to accept defendant's late answer is granted.
ALIOTTA, P.J., ELLIOT and SIEGAL, JJ., concur.