                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: February 26, 2015                    518957
________________________________

PETER L. STRUMPF,
                     Appellant,
     v
                                             MEMORANDUM AND ORDER
MASSACHUSETTS MUTUAL LIFE
   INSURANCE COMPANY,
                    Respondent.
________________________________


Calendar Date:   January 9, 2015

Before:   McCarthy, J.P., Rose, Egan Jr. and Devine, JJ.

                              __________


      Law Office of Nancy M. Eraca, Elmira (Nancy M. Eraca of
counsel), for appellant.

      d'Arcambal Ousley & Cuyler Burk, LLP, New York City (Aimee
L. Creed of counsel), 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's answer.

      Plaintiff commenced this breach of contract action against
defendant, his disability insurance carrier, in January 2014
seeking damages in excess of $500,000. The parties thereafter
entered into a written stipulation extending defendant's time to
answer until February 24, 2014. As that date approached, counsel
for defendant reached out to plaintiff's counsel to seek a
further extension. After being advised that plaintiff's counsel
was out of the country and unreachable, defendant sought such
relief by order to show cause. On February 24, 2014, Supreme
                              -2-                518957

Court signed the order to show cause, staying the agreed-upon
deadline for defendant to answer, move or otherwise respond
pending determination of the motion. Plaintiff was served with
the order to show cause the following day.

      Upon returning to this country, plaintiff's counsel opposed
defendant's application and cross-moved to vacate the stay
provision. Two days prior to the return date of the order to
show cause, defendant served its answer. As a result, Supreme
Court deemed defendant's motion for an extension of time to
answer to be moot and denied plaintiff's cross motion to vacate
the stay. This appeal by plaintiff ensued.

      We affirm. Preliminarily, although Supreme Court's order
states that it deemed defendant's motion for an extension of time
to answer to be moot, the court – by initially staying the
agreed-upon deadline set forth in the parties' stipulation and
thereafter accepting defendant's answer – effectively granted
defendant's motion in this regard. Hence, our analysis will
proceed accordingly.

      Pursuant to CPLR 3012 (d), Supreme Court may – upon
application of a party – "extend the time to appear or plead, or
compel the acceptance of a pleading untimely served, upon such
terms as may be just and upon a showing of reasonable excuse for
[the] delay or default" (see Dinstber v Allstate Ins. Co., 75
AD3d 957, 957 [2010]; Watson v Pollacchi, 32 AD3d 565, 565
[2006]). Whether to grant a party's application in this regard
is a matter 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 whether the
opposing party suffered prejudice as a result (cf. Dinstber v
Allstate Ins. Co., 75 AD3d at 957-958; see generally 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 is devoid of proof that such delay was willful and
defendant acted promptly to secure the original extension of time
to answer and to thereafter seek – informally and via order to
show cause – an additional extension of time. Additionally,
plaintiff has not articulated – and we are unable to discern –
any resulting prejudice. With these factors in mind, and in
                              -3-                  518957

light of the public policy favoring the resolution of disputes on
the merits, we cannot say that Supreme Court abused its
discretion in effectively granting defendant's motion and
thereafter accepting service of defendant's answer (cf. Dinstber
v Allstate Ins. Co., 96 AD3d 1198, 1200 [2012]; Watson v
Pollacchi, 32 AD3d at 565-566; Planck v SUNY Bd. of Trustees, 18
AD3d 988, 992 [2005], lv dismissed 5 NY3d 844 [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. Animal Shelter, Inc. v Montgomery
County Socy. for Prevention of Cruelty to Animals, 17 AD3d 904,
905 [2005], lv dismissed 5 NY3d 824 [2005], lv denied 7 NY3d 712
[2006]), even assuming – as plaintiff contends – that such an
affidavit was required, defendant's detailed answer setting forth
various affirmative defenses was sufficient for this purpose (see
Dinstber v Allstate Ins. Co., 75 AD3d 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 that defendant made "a good faith effort"
(22 NYCRR 202.7 [f]) to notify plaintiff of its request 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 either party. The parties'
remaining arguments, to the extent not specifically addressed,
have been examined and found to be lacking in merit.

     McCarthy, J.P., Rose and Devine, JJ., concur.


     ORDERED that the order is affirmed, with costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
