| Rickert v Chestara |
| 2008 NY Slip Op 08595 [56 AD3d 941] |
| November 13, 2008 |
| Appellate Division, Third Department |
| George A. Rickert et al., Appellants, v Mary Lou Chestara, AlsoKnown as Mary Lou Corbo, et al., Respondents. |
—[*1] O'Connell & Aronowitz, Albany (William F. Berglund of counsel), for respondents.
Malone Jr., J. Appeal from an order of the Supreme Court (O'Connor, J.), entered September11, 2007 in Albany County, which, among other things, granted defendants' cross motion tocompel plaintiffs to accept service of defendants' answer.
Plaintiffs commenced this action against defendants in September 2006 alleging, amongother things, fraud, unjust enrichment and breach of an oral agreement allegedly entered intobetween plaintiff George A. Rickert and John Chestara in August 1998 regarding the storage ofcertain motor vehicles in a barn then owned by defendant Mary Lou Chestara (hereinafterChestara).[FN*]A dispute thereafter arose between Rickert and Chestara, and Rickert indicated that he would beremoving the vehicles from the property. Ultimately, the property went into foreclosure andChestara vacated the premises, at which point the vehicles apparently remained on the property.At some point thereafter, the vehicles disappeared from the barn, prompting the commencementof this lawsuit and related proceedings against Chestara and her boyfriend, defendant StevenMorse. An initial extension of time to answer [*2]was grantedand, according to defendants' counsel, a second extension was discussed with plaintiffs' counsel.When no answer was forthcoming, plaintiffs moved for a default judgment, and defendantscross-moved to vacate the default and compel plaintiffs to accept service of their answer.Supreme Court denied plaintiffs' motion and granted defendants' cross motion, prompting thisappeal.
We affirm. "Supreme Court is vested with the discretionary authority to permit late service ofan answer upon a showing of a reasonable excuse for the delay and a meritorious cause of action"(Huckle v CDH Corp., 30 AD3d878, 879 [2006] [citations omitted]; see CPLR 3012 [d]; Watson v Pollacchi, 32 AD3d 565[2006]; Planck v SUNY Bd. ofTrustees, 18 AD3d 988, 992 [2005], lv dismissed 5 NY3d 844 [2005]; DeNooyer Chevrolet v Polsinello Fuels, 251 AD2d 871 [1998]). To that end, "[w]hether there isa reasonable excuse for a default is a discretionary, sui generis determination to be made by thecourt based on all relevant factors, including the extent of the delay, whether there has beenprejudice to the opposing party, whether there has been willfulness, and the strong public policyin favor of resolving cases on the merits" (Harcztark v Drive Variety, Inc., 21 AD3d 876, 876-877 [2005]; see Aquilar v Nassau Health CareCorp., 40 AD3d 788, 789 [2007]). While defendants' proffered excuses for the delaycould have been stated with greater clarity, we are persuaded, based upon our review of therecord as a whole, that they have both adequately explained the reason for the delay anddemonstrated the existence of at least one meritorious defense. Moreover, plaintiffs have notasserted, and we are unable to discern, any resulting prejudice, and it is readily apparent thatdefendants did not intend to abandon their defense of this action. Under such circumstances, wecannot say that Supreme Court improvidently exercised its discretion in granting defendants'cross motion to compel plaintiffs to accept service of defendants' answer (see Watson vPollacchi, supra).
Cardona, P.J., Spain, Carpinello and Stein, JJ., concur. Ordered that the order is affirmed,with costs.
Footnote *: John Chestara is the formerspouse of defendant Mary Lou Chestara.