| Puchner v Nastke |
| 2012 NY Slip Op 00456 [91 AD3d 1261] |
| Jnury 26, 2012 |
| Appellate Division, Third Department |
| Thomas Puchner, Appellants, v Jason Nastke, Respondent, et al.,Defendants. |
—[*1] William J. Better, Kinderhook, for respondent.
Peters, J.P. Appeal from an order of the Supreme Court (McGrath, J.), entered October 14,2010 in Columbia County, which, among other things, granted defendant Jason Nastke's crossmotion for leave to serve an answer.
Plaintiffs commenced this action in December 2009 alleging, among other things, negligenceand breach of contract arising from the construction and sale of their home in the Village ofValatie, Columbia County. Defendant Jason Nastke (hereinafter defendant) was personallyserved with a summons with notice on April 19, 2010. Unrepresented by counsel, he attempted toserve plaintiffs with a notice of appearance and demand for complaint on May 11, 2010 and May20, 2010, but each attempt was rejected as untimely. Nevertheless, plaintiffs served defendantwith a verified complaint on June 1, 2010. Defendant retained an attorney in early August and,on August 18, 2010, served plaintiffs with a verified answer. Plaintiffs rejected the answer asuntimely and thereafter moved for a default judgment against defendant. Defendant opposedplaintiffs' application and cross-moved for an order compelling plaintiffs to accept service of theanswer. Supreme Court denied plaintiffs' motion and granted defendant's cross motion,prompting this appeal.
We affirm. Supreme Court possesses the discretion to permit late service of an answer upon ashowing of a reasonable excuse for the delay and a meritorious defense to the complaint(see CPLR 3012 [d]; Williams vCharlew Constr. Co., Inc., 82 AD3d 1491, 1492 [2011]; Kostun v Gower, 61 AD3d 1307,1308 [2009]; Huckle v CDH Corp.,30 AD3d 878, 879 [2006]). "[W]hether there is a reasonable excuse for a default is adiscretionary, sui generis determination to be made by the court based on all relevant factors,including the extent of the delay, whether there has been prejudice to the opposing party, whetherthere has been willfulness, and the strong public policy in favor of resolving cases on the merits"(Rickert v Chestara, 56 AD3d941, 942 [2008] [internal quotation marks and citations omitted]; accord Dinstber v Allstate Ins. Co., 75AD3d 957, 957-958 [2010]; seeWatson v Pollacchi, 32 AD3d 565, 565 [2006]).
Here, defendant averred that, for financial reasons, he initially attempted to represent himselfin what he presumed would be a frivolous lawsuit. Shortly after being served with the summonswith notice, defendant twice submitted a notice of appearance and a demand for a complaint, towhich plaintiffs eventually responded. After receiving the complaint, which consisted of nearly300 numbered paragraphs encompassing 18 causes of action, defendant realized that he could nolonger handle the matter on a pro se basis and thus retained an attorney. Counsel promptlyattempted service of an answer upon plaintiffs and, upon plaintiffs' rejection of the answer asuntimely, expeditiously moved to compel acceptance thereof. Under these circumstances,defendant's delay in answering did not reflect willfulness and "it is readily apparent thatdefendant[ ] did not intend to abandon [his] defense of this action" (Rickert v Chestara,56 AD3d at 942; accord Kostun v Gower, 61 AD3d at 1308; see Matter of Toyota Motor Credit Corp. vImpressive Auto Ctr., Inc., 80 AD3d 861, 864 [2011]). Nor have plaintiffs asserted, andwe are unable to discern, any prejudice inuring to them as a result of defendant's relatively briefdelay. Furthermore, the affidavits submitted by defendant in support of the motion and theproposed verified answer sufficiently demonstrated the existence of arguably meritoriousdefenses (see Acker v VanEpps, 45AD3d 1104, 1106 [2007]).[FN*]In view of this and considering the public policy favoring resolution of cases on the merits, wecannot conclude that Supreme Court improvidently exercised its discretion in grantingdefendant's cross motion to compel plaintiffs to accept service of his answer (see Dinstber vAllstate Ins. Co., 75 AD3d at 958-959; Kostun v Gower, 61 AD3d at 1308;Rickert v Chestara, 56 AD3d at 942; Acker v Van Epps, 45 AD3d at 1105-1106;Bardi v Mosher, 235 AD2d 869, 870 [1997]).
Rose, Kavanagh, McCarthy and Garry, JJ., concur. Ordered that the order is affirmed, withcosts.
Footnote *: Although plaintiffs disputedcertain factual allegations advanced by defendant in connection with his asserted meritoriousdefenses, defendant was only required to make a prima facie showing of legal merit to thedefenses (see Chase Manhattan Automotive Fin. Corp. v Allstate Ins. Co., 272 AD2d772, 773 [2000]; David Sanders, P. C. v Sanders, Architects, 140 AD2d 787, 789[1988]). Thus, despite plaintiffs' assertions to the contrary, Supreme Court was not required tohold a hearing to resolve these factual issues before deciding the motion (cf. Lopez vNorthern Assur. Co. of Am., 290 AD2d 628, 629 [2002]; Scielzi v Gold, 213 AD2d872, 873 [1995]).