| Arrington v Bronx Jean Co., Inc. |
| 2010 NY Slip Op 06399 [76 AD3d 461] |
| August 17, 2010 |
| Appellate Division, First Department |
| Errika Arrington, Respondent, v Bronx Jean Company,Inc., Also Known as Jeans Plus, Inc., Appellant, et al., Defendant. |
—[*1] Laurence M. Savedoff, P.L.L.C., Bronx (Laurence M. Savedoff of counsel), forrespondent.
Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered September 1,2009, which, to the extent appealed from, adhered, upon reargument, to so much of a prior ordergranting plaintiff's cross motion for a default judgment on her cause of action for negligence,unanimously reversed, on the facts, without costs, the cross motion denied and default judgmentvacated. Order, same court and Justice, entered December 23, 2009, which denied the corporatedefendant's motion to vacate the note of issue and strike the complaint for failure to comply withdiscovery, unanimously modified, on the law, the motion granted to the extent of vacating thenote of issue, and otherwise affirmed, without costs.
Although the corporate defendant served its motion to dismiss approximately 22 days late,the delay was minimal, given that defense counsel received the complaint from defendant'sinsurance carrier only six days prior to serving the motion, and there was no prejudice to plaintiff(see Siwek v Phillips, 71 AD3d469 [2010] [default not warranted where counsel for defendant did not receive complaintfrom carrier until after time to serve answer had expired, delay was minimal and plaintiffclaimed no prejudice]; Rodriguez vDixie N.Y.C., Inc., 26 AD3d 199 [2006] [insurance carrier's delay in assigning counselmay constitute reasonable excuse for default in answering complaint]). Notably, five days priorto the statutory deadline for service of the answer, plaintiff's counsel forwarded a copy of thesummons and complaint and an affidavit of service to defendant's insurance carrier via fax with anote requesting that an answer be served "as soon as possible." Defense counsel's understandingthat he had additional time to answer was not unreasonable, as the request hardly alerted defensecounsel that plaintiff's counsel was insisting on service of an answer by the imminent deadline.Moreover, service of the motion to dismiss in lieu of an answer shortly thereafter, on August 13,evidenced an intent to defend. Although in opposing the motion for a default judgment defendantdid not provide an affidavit of merit, none is required where no default order or judgment hasbeen entered (Lamar v City of [*2]New York, 68 AD3d 449 [2009]). Under thesecircumstances, and in view of the strong public policy favoring resolution of cases on theirmerits, the court improvidently exercised its discretion in granting a default judgment.
In view of the foregoing, the note of issue scheduling an assessment of damages, filed inconnection with the negligence cause of action, is vacated. Concur—Tom, J.P., Sweeny,Catterson, McGuire and RomÁn, JJ.