| Strumpf v Massachusetts Mut. Life Ins. Co. |
| 2015 NY Slip Op 01696 [125 AD3d 1239] |
| February 26, 2015 |
| Appellate Division, Third Department |
[*1]
| Peter L. Strumpf, Appellant, v Massachusetts MutualLife Insurance Company, Respondent. |
Law Office of Nancy M. Eraca, Elmira (Nancy M. Eraca of counsel), forappellant.
d'Arcambal Ousley & Cuyler Burk, LLP, New York City (Aimee L. Creed ofcounsel), for respondent.
Egan Jr., J. Appeal from an order of the Supreme Court (O'Shea, J.), entered April 2,2014 in Chemung County, which, among other things, accepted service of defendant'sanswer.
Plaintiff commenced this breach of contract action against defendant, his disabilityinsurance carrier, in January 2014 seeking damages in excess of $500,000. The partiesthereafter entered into a written stipulation extending defendant's time to answer untilFebruary 24, 2014. As that date approached, counsel for defendant reached out toplaintiff's counsel to seek a further extension. After being advised that plaintiff's counselwas out of the country and unreachable, defendant sought such relief by order to showcause. On February 24, 2014, Supreme Court signed the order to show cause, staying theagreed-upon deadline for defendant to answer, move or otherwise respond pendingdetermination of the motion. Plaintiff was served with the order to show cause thefollowing day.
Upon returning to this country, plaintiff's counsel opposed defendant's applicationand cross-moved to vacate the stay provision. Two days prior to the return date of theorder to show cause, defendant served its answer. As a result, Supreme Court deemeddefendant's motion for an extension of time to answer to be moot and denied plaintiff'scross motion to vacate the stay. This appeal by plaintiff ensued.
We affirm. Preliminarily, although Supreme Court's order states that it deemeddefendant's motion for an extension of time to answer to be moot, the court—byinitially staying [*2]the agreed-upon deadline set forth inthe parties' stipulation and thereafter accepting defendant's answer—effectivelygranted defendant's motion in this regard. Hence, our analysis will proceedaccordingly.
Pursuant to CPLR 3012 (d), Supreme Court may—upon application of aparty—"extend the time to appear or plead, or compel the acceptance of a pleadinguntimely served, upon such terms as may be just and upon a showing of reasonableexcuse for [the] delay or default" (see Dinstber v Allstate Ins. Co., 75 AD3d 957, 957 [2010];Watson v Pollacchi, 32AD3d 565, 565 [2006]). Whether to grant a party's application in this regard is amatter committed to Supreme Court's sound discretion following due consideration of,among other things, the length of the delay, whether such delay was willful and whetherthe opposing party suffered prejudice as a result (cf. Dinstber v Allstate Ins. Co.,75 AD3d at 957-958; seegenerally Guzetti v City of New York, 32 AD3d 234, 238-240 [2006][McGuire, J., concurring]). Here, the delay at issue was relatively brief, the record isdevoid of proof that such delay was willful and defendant acted promptly to secure theoriginal extension of time to answer and to thereafter seek—informally and viaorder to show cause—an additional extension of time. Additionally, plaintiff hasnot articulated—and we are unable to discern—any resulting prejudice.With these factors in mind, and in light of the public policy favoring the resolution ofdisputes on the merits, we cannot say that Supreme Court abused its discretion ineffectively granting defendant's motion and thereafter accepting service of defendant'sanswer (cf. Dinstber v AllstateIns. Co., 96 AD3d 1198, 1200 [2012]; Watson v Pollacchi, 32 AD3d at565-566; Planck v SUNY Bd.of Trustees, 18 AD3d 988, 992 [2005], lv dismissed and denied 5 NY3d844 [2005]). Finally, although an affidavit of merit was not required here due to the"relatively short" delay (Aabel v Town of Poughkeepsie, 301 AD2d 739, 740[2003]; see Ayres Mem. AnimalShelter, Inc. v Montgomery County Socy. for Prevention of Cruelty to Animals, 17AD3d 904, 905 [2005], lv dismissed 5 NY3d 824 [2005], lv denied 7NY3d 712 [2006]), even assuming—as plaintiff contends—that such anaffidavit was required, defendant's detailed answer setting forth various affirmativedefenses was sufficient for this purpose (see Dinstber v Allstate Ins. Co., 75AD3d at 958; Watson v Pollacchi, 32 AD3d at 565).
As for the denial of plaintiff's cross motion to vacate the stay, we are satisfied thatdefendant made "a good faith effort" (22 NYCRR 202.7 [f]) to notify plaintiff of itsrequest for a stay pending a determination of the underlying order to show cause. Finally,our review of the record reveals no basis upon which to impose sanctions against eitherparty. The parties' remaining arguments, to the extent not specifically addressed, havebeen examined and found to be lacking in merit.
McCarthy, J.P., Rose and Devine, JJ., concur. Ordered that the order is affirmed,with costs.