| DaimlerChrysler Ins. Co. v Seck |
| 2011 NY Slip Op 02062 [82 AD3d 581] |
| March 22, 2011 |
| Appellate Division, First Department |
| DaimlerChrysler Insurance Company, as Subrogee of ChryslerFinancial Co., Respondent, v Aliou Seck et al., Defendants, and Nationwide AssuranceCompany, Appellant. |
—[*1] Buckley, Zinober & Curtis, P.A., New York (Robert N. Mizrahi of counsel), forrespondent.
Order, Supreme Court, New York County (Jane S. Solomon, J.), entered October 26, 2010,which denied defendant-appellant's (Nationwide) motion to vacate a prior order, same court andJustice, entered June 3, 2010, granting plaintiff's motion, on default, striking Nationwide'sanswer, and directing plaintiff to file a note of issue for an inquest, unanimously reversed, on thelaw, the facts and in the exercise of discretion, with costs, the motion to vacate granted, theanswer reinstated, the Clerk directed to strike the plaintiff's note of issue, and the matterremanded for further proceedings.
An order striking an answer should be vacated where a defendant can show a reasonableexcuse for default (CPLR 5015 [a]) and a meritorious defense (see Harwood v Chaliha,291 AD2d 234 [2002]). Here, Nationwide demonstrated that its failure to oppose plaintiff'smotion was neither willful, nor part of a pattern of dilatory behavior (see Chelli v Kelly Group, P.C., 63AD3d 632 [2009]). Plaintiff has failed to point to any evidence that the relatively short delayof four months caused it to change its position or other prejudice (see Mutual Mar. Off., Inc. v Joy Constr.Corp., 39 AD3d 417 [2007]; Forastieri v Hasset, 167 AD2d 125 [1990]). In lightof the strong public policy of this State to dispose of cases on their merits, the motion courtimprovidently exercised its discretion in denying Nationwide's motion to vacate the default order(Harwood, 291 AD2d 234).
Vacatur is particularly warranted in that questions surround whether Nationwide was servedwith the motion in the first instance, and in that plaintiff's notice of motion sought only to extendits time to file a note of issue, with no relief requested against Nationwide (see CPLR2214 [a]).
Nationwide made a sufficient showing of a meritorious defense to the underlying motion,and the plaintiff's action. The drastic remedy of striking an answer is inappropriate, absent a clearshowing that defendant's failure to comply with discovery demands was willful or [*2]contumacious (see Weissman v 20 E. 9th St. Corp., 48 AD3d 242 [2008]). In itsunderlying motion, plaintiff failed to submit sufficient proof that Nationwide was in violation ofa prior order, including the order allegedly violated (see Ramirez v New York City Hous. Auth., 57 AD3d 231 [2008]).Moreover, delays in discovery were caused by both parties' actions, making a unilateral sanctioninappropriate (see Sifonte v Carol Gardens Hous. Co., 70 AD2d 563 [1979]).
Nationwide also demonstrated potentially meritorious legal and factual defenses to plaintiff'sclaims (see Murphy v Kuhn, 90 NY2d 266 [1997]; Pavia v State Farm Mut. Auto.Ins. Co., 82 NY2d 445 [1993]).
In light of the foregoing, we need not reach the parties' remaining contentions.Concur—Tom, J.P., Andrias, Sweeny, Moskowitz and Renwick, JJ.