| Dinstber v Allstate Ins. Co. |
| 2010 NY Slip Op 06200 [75 AD3d 957] |
| July 22, 2010 |
| Appellate Division, Third Department |
| George C. Dinstber III, Appellant, v Allstate Insurance Company,Respondent. |
—[*1] Goldberg & Segalla, L.L.P., Buffalo (Anthony L. Germano of counsel), forrespondent.
Stein, J. Appeal from an order of the Supreme Court (Rumsey, J.), entered January 23, 2009in Cortland County, which, among other things, granted defendant's motion to extend its time toanswer and to compel plaintiff to accept late service of the answer.
In January 2002, plaintiff notified defendant, his no-fault insurance carrier, of an accidentwherein the car he was driving was struck from behind. Defendant denied coverage for the claimin July 2002. Almost six years later, plaintiff commenced this action for breach of contract anddealing in bad faith.
Plaintiff served a summons and verified complaint on the Insurance Department on July 29,2008 pursuant to Insurance Law § 1212. However, defendant allegedly did not receivethem until August 21, 2008. Although defendant served an answer on August 28, 2008, plaintiffrejected it because it was not verified. On September 4, 2008—one day after receivingplaintiff's letter of rejection—defendant served a second answer, virtually identical to thefirst but properly verified, which was rejected by plaintiff as untimely. Defendant then promptlymoved to extend its time to answer and to compel plaintiff to accept late service thereof. Plaintiffcross-moved for a default judgment. Supreme Court granted defendant's motion—givingdefendant 30 days to file, serve and file proof of service of the second answer—and deniedplaintiff's cross motion. Plaintiff now appeals and we affirm.[*2]
Pursuant to CPLR 3012 (d), Supreme Court has thediscretion to permit late service of an answer upon the demonstration of a reasonable excuse forthe delay or default (see Rickert vChestara, 56 AD3d 941, 942 [2008]; Watson v Pollacchi, 32 AD3d 565, 565 [2006]). "To that end,'[w]hether there is a reasonable excuse for a default is a discretionary, sui generis determinationto be made by the court based on all relevant factors, including the extent of the delay, whetherthere has been prejudice to the opposing party, whether there has been willfulness, and the strongpublic policy in favor of resolving cases on the merits' " (Rickert v Chestara, 56 AD3d at942, quoting Harcztark v Drive Variety,Inc., 21 AD3d 876, 876-877 [2005]; see Watson v Pollacchi, 32 AD3d at 565).Also relevant is whether the untimely answer sets forth a meritorious defense to plaintiff'scomplaint (see Rickert v Chestara, 56 AD3d at 942; Watson v Pollacchi, 32AD3d at 565).
Here, contrary to plaintiff's assertion, we find that defendant proffered both a reasonableexcuse for its delay in serving a verified answer and a sufficiently meritorious defense to theclaims. Defendant proffered several reasons for its delay. First, defendant submitted evidencethat it did not actually receive the complaint from the Insurance Department until one weekbefore the time to answer expired and that an incorrect date of service on the transmittal sheetcaused further delay in the complaint being referred to counsel. After unsuccessfully attemptingto contact plaintiff to obtain an extension of time to serve an answer, defendant effected suchservice one day after counsel's receipt of the complaint. Secondly, defendant alleged law officefailure in neglecting to include the verification with the initial answer, which was timely served.In our view, these circumstances established a reasonable excuse for the default (seeCPLR 2005).
We also note that defendant's answer set forth a myriad of defenses including, among others,failure to state a cause of action, failure to comply with the terms and conditions of the policy,fraud or perjury on plaintiff's part and that the claim is time-barred. In addition, defendant'sattorney provided Supreme Court with the original denial of coverage letter, which set forth indetail the reasons why plaintiff's claim for benefits was denied. Such assertions set forth asufficiently meritorious defense for purposes of defendant's motion (see Chase ManhattanAutomotive Fin. Corp. v Allstate Ins. Co., 272 AD2d 772, 774-775 [2000]).
In view of defendant's reasonable excuse for the default, the minimal delay, defendant'sexpeditious motion to compel acceptance of the answer, the absence of proof that the default waswillful or any indication that plaintiff was prejudiced by the delay, and the existence of anarguably meritorious defense, we conclude that Supreme Court's decision to grant defendant'smotion to extend the time to answer and to compel plaintiff to accept service was a properexercise of its discretion (see Rickert v Chestara, 56 AD3d at 942; Acker v VanEpps, 45 AD3d 1104,1105, 1106 [2007]).
Plaintiff's remaining contentions, to the extent they are properly before us, have beenconsidered and found to be unavailing.
Cardona, P.J., Rose, McCarthy and Garry, JJ., concur. Ordered that the order is affirmed,without costs.