| Perez v Travco Ins. Co. |
| 2007 NY Slip Op 07679 [44 AD3d 738] |
| October 9, 2007 |
| Appellate Division, Second Department |
| Juan Carlos Perez, Respondent, v Travco InsuranceCompany, Appellant. |
—[*1] Barnes & Barnes, P.C., Garden City, N.Y. (Leo K. Barnes, Jr., of counsel), forrespondent.
In an action, inter alia, for a judgment declaring that the defendant is obligated to defend andindemnify the plaintiff in an underlying action entitled Araujo v Aviles, pending in theSupreme Court, Kings County, under index No. 22868/04, the defendant appeals from an orderof the Supreme Court, Kings County (Partnow, J.), dated March 8, 2007, which granted theplaintiff's motion for leave to enter a judgment against it upon its failure to appear or answer thecomplaint and denied its cross motion to vacate its default and to compel the plaintiff to acceptits verified answer.
Ordered that the order is reversed, on the law and in the exercise of discretion, without costsor disbursements, the plaintiff's motion for leave to enter a judgment against the defendant uponits failure to appear or answer the complaint is denied, the defendant's cross motion to vacate itsdefault and to compel the plaintiff to accept its verified answer is granted, and the verifiedanswer is deemed timely served.
A defendant seeking to vacate a judgment entered on default must demonstrate a reasonableexcuse for its delay in appearing or answering the complaint and a meritorious defense to theaction (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co.,67 NY2d 138, 141 [1986]). The defendant established a reasonable excuse for the short period oftime in which it failed either to appear or answer the complaint through an employee's affidavit,which attested to a clerical oversight regarding the delay in forwarding the summons andcomplaint to its attorney (see Sound[*2]Shore Med. Ctr. v Lumbermens Mut. Cas. Co., 31 AD3d743 [2006]). Furthermore, the defendant demonstrated that it has a potentially meritoriousdefense (see Security Mut. Ins. Co. of N.Y. v Acker-Fitzsimons Corp., 31 NY2d 436, 440[1972]; Paul Developers, LLC vMaryland Cas. Ins. Co., 28 AD3d 443 [2006]; Sayed v Macari, 296 AD2d 396[2002]). Accordingly, the Supreme Court improvidently exercised its discretion, inter alia, indenying the defendant's cross motion to vacate its default and to compel acceptance of its answerin light of the strong public policy that actions be resolved on their merits, the brief delayinvolved, the defendant's lack of willfulness, and the absence of prejudice to the plaintiff (see New York & Presbyt. Hosp. vAmerican Home Assur. Co., 28 AD3d 442, 443 [2006]; Friedman v Ostreicher, 22 AD3d798, 799 [2005]; McCord v American Golf, 245 AD2d 349, 350 [1997]). Santucci,J.P., Goldstein, Dillon and Angiolillo, JJ., concur.