| Dinstber v Allstate Ins. Co. |
| 2012 NY Slip Op 04805 [96 AD3d 1198] |
| June 14, 2012 |
| Appellate Division, Third Department |
| George C. Dinstber III, Appellant, v Allstate Insurance Company,Respondent. |
—[*1] Goldberg & Segalla, L.L.P., Buffalo (Bryan D. Richmond of counsel), forrespondent.
Stein, J. Appeal from an order of the Supreme Court (Rumsey, J.), entered October 26, 2010in Cortland County, which, among other things, denied plaintiff's motion to vacate a prior order.
Plaintiff commenced this action in July 2008 for, among other things, breach of contractarising out of a motor vehicle accident in January 2002. Although defendant timely served ananswer, plaintiff rejected it because it was not verified. Defendant promptly moved for anextension of time to serve the answer, and plaintiff cross-moved for a default judgment. InJanuary 2009, Supreme Court granted defendant's motion, directed defendant to serve and file"the complete original Verified Answer dated September 4, 2008," with proof of service, within30 days, and denied plaintiff's cross motion. After this Court affirmed Supreme Court's January2009 order (Dinstber v Allstate Ins.Co., 75 AD3d 957, 958-959 [2010]), defendant moved for partial summary judgment.Plaintiff then moved, by order to show cause dated September 14, 2010, for leave to renew hismotion for a default judgment based on defendant's failure to comply with the January 2009order, to vacate the January 2009 order and for a default judgment against defendant as toliability, among other things. Supreme Court denied plaintiff's motion, deemed defendant'sfailure to comply with the January 2009 order to be corrected, nunc pro tunc, so long asdefendant paid plaintiff's costs in the amount of $850,[FN1]and scheduled a return date for [*2]defendant's summaryjudgment motion.[FN2]This appeal by plaintiff ensued.
We affirm. It is well settled that a court may, at any stage of an action, "permit a mistake,omission, defect or irregularity, including . . . [a] mistake in the filing process, to becorrected, upon such terms as may be just, or, if a substantial right of a party is not prejudiced,[disregard] the mistake, omission, defect or irregularity" (CPLR 2001; see Goldenberg v Westchester CountyHealth Care Corp., 16 NY3d 323, 327-328 [2011]; Ruffin v Lion Corp., 15 NY3d 578, 582-583 [2010]; Johns v Van Brunt Motors, Inc., 89AD3d 1188, 1189-1190 [2011]). Here, although defendant timely served plaintiff withanother copy of the answer in February 2009, it failed to file the original answer and proof ofservice with the Cortland County Clerk's office until approximately one year later, when itdiscovered its error. When defendant attempted to correct its filing error, the affidavits of serviceaccompanying each copy of the answer contained additional errors. Furthermore, plaintiffpointed out in his September 2010 order to show cause that the copy of the answer served on himin February 2009 was missing a page.
Contrary to plaintiff's contention, Supreme Court's sanction for defendant's failure to strictlycomply with its January 2009 order in a timely manner was not an abuse of the court's discretion.In denying plaintiff's motion, Supreme Court correctly examined all relevant factors including,among others, the lack of any prejudice to plaintiff resulting from the foregoing errors. Indetermining that plaintiff's ability to prosecute his claim was not unduly compromised, SupremeCourt considered that he had failed to demand service of a complete answer[FN3]—and, in fact, took no action with regard to defendant's filing and service errors until morethan one year after they occurred—and that neither party served discovery demands duringthe pendency of plaintiff's first appeal to this Court. The record further reflects that the partiesproceeded with their respective motions in late 2010. Moreover, Supreme Court took intoaccount that defendant's errors caused some "unnecessary delay, confusion and motion practice,"by requiring defendant's counsel to pay plaintiff's costs and expenses incurred in bringing theinstant motion. In view of the absence of prejudice to plaintiff, the lack of any showing ofwillfulness on defendant's part, the strong public policy in favor of resolving cases on the merits(see Puchner v Nastke, 91 AD3d1261, 1261-1262 [2012]; Dinstber v Allstate Ins. Co., 75 AD3d at 957-958; Rickert v Chestara, 56 AD3d 941,942 [2008]), and the fact that the answer appears to raise several meritorious defenses to thecomplaint (see CPLR 3012 [d]; Puchner v Nastke, 91 AD3d at 1261-1262; Williams v Charlew Constr. Co., Inc.,82 AD3d 1491, 1492 [2011]; Kostun v Gower, 61 AD3d 1307, 1308 [2009]), Supreme Courtproperly exercised its discretion by permitting late filing and service of defendant's answer,conditioned on the payment of plaintiff's motion costs.[*3]
Rose, J.P., Malone Jr., Garry and Egan Jr., JJ., concur.Ordered that the order is affirmed, without costs.
Footnote 1: Plaintiff does not dispute thatdefendant has made such payment.
Footnote 2: Supreme Court's determinationof such motion is now the subject of a separate appeal.
Footnote 3: Notably, the copy of the answerthat was originally served on plaintiff in 2008 apparently contained the page missing from thecopy served in 2009. It also appears that plaintiff was provided with another complete copy of theanswer prior to the order now appealed from (see Ruffin v Lion Corp., 15 NY3d at582-583; Raschel v Rish, 69 NY2d 694, 696 [1986]; see also Key Bank Natl. Assn. v Stern, 14 AD3d 656, 657 [2005]).