Opinion
December 5, 1975
Appeal from the Erie Special Term.
Present — Marsh, P.J., Simons, Mahoney, Goldman and Del Vecchio, JJ.
Order unanimously affirmed, without costs. Memorandum: Plaintiffs appeal from Special Term's order which extended defendant-respondent's time to plead, move or otherwise respond to the summons and complaint and directed plaintiffs to accept the responsive pleadings. The accident occurred on February 2, 1973. Plaintiffs instituted their action by service of the summons and complaint on May 20, 1974. The agent of defendant's insurance carrier requested a general extension of time so that negotiations could be carried on with plaintiffs in an effort to settle the case. When these negotiations proved fruitless, the insurance carrier on April 9, 1975 sent its file to its attorneys. Immediately upon being retained, defendant's attorneys, on April 14, 1975, served a notice of appearance, an answer, a demand for a bill of particulars, a notice for an examination before trial and a note of issue. On April 22, 1975 plaintiffs' attorney returned all of the documents except the notice of appearance. Defendant immediately, on April 22, 1975, secured an order to show cause, returnable on April 25, 1975, seeking an order, pursuant to CPLR 2004, requiring plaintiffs to accept service of the pleadings which plaintiffs' attorney had returned. Defendant's answer denies that he was negligent and asserts that if the infant-plaintiff obtains a recovery, the defendant is entitled to a judgment over against plaintiff Frances M. Jordan, plaintiff's mother, who was the driver of the vehicle in which the infant was a passenger. Plaintiffs' claim that they are prejudiced by the delay is unpersuasive and insufficient to deny defendant the opportunity to have the case disposed of on the merits (Matter of Mento, 33 A.D.2d 650; Matter of Raichle, Moore, Banning Weiss v Commonwealth Fin. Co., 14 A.D.2d 830). Under the circumstances Special Term properly exercised its discretion in granting the motion (see Shanks v K-Mart Discount Dept. Store, 45 A.D.2d 993).