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Order to Compel Acceptance of Answer Upheld—Delay Caused by Insurance Carrier is Valid Excuse—Precedent to the Contrary Overruled

In a personal injury action, the Fourth Department affirmed Supreme Court’s order compelling plaintiff to accept the answer as timely.  In so finding, the Fourth Department noted that a prior decision holding that a delay caused by the defendant’s insurance carrier is not a reasonable excuse should no longer be followed:

It is well settled that “ ‘[p]ublic policy favors the resolution of a case on the merits, and a court has broad discretion to grant relief from a pleading default if there is a showing of merit to the defense, a reasonable excuse for the delay and it appears that the delay did not prejudice the other party’ ”….  Furthermore, “[t]he determination whether an excuse is reasonable lies within the sound discretion of the motion court”…. Here, defendant met her burden with respect to a meritorious defense by demonstrating that there is factual support for her defenses… .  * * *

Insofar as we indicated in our decision in Smolinski v Smolinski (13 AD3d 1188, 1189) that “ ‘an excuse that the delay in appearing or answering was caused by the defendant’s insurance carrier is insufficient’ ” to establish a reasonable excuse for a delay in answering, it is no longer to be followed. Rather, the determination whether delay caused by an insurer constitutes a reasonable excuse for a default in answering lies “in the discretion of the court in the interests of justice” (Castillo v Garzon-Ruiz, 290 AD2d 288, 290; see CPLR 2005).   Accetta v Simmons, 676, 4th Dept 7-5-13

 

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