        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

676
CA 12-01654
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, AND VALENTINO, JJ.


ANNE M. ACCETTA, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

AFTON R. SIMMONS, DEFENDANT-RESPONDENT.


LAW OFFICE OF JACOB P. WELCH, CORNING (MICHAEL A. DONLON OF COUNSEL),
FOR PLAINTIFF-APPELLANT.

RUPP, BAASE, PFALZGRAF, CUNNINGHAM & COPPOLA LLC, ROCHESTER (MATTHEW
A. LENHARD OF COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Steuben County (Peter
C. Bradstreet, A.J.), entered June 14, 2012. The order denied the
motion of plaintiff for a default judgment and granted the cross
motion of defendant to compel plaintiff to accept the answer as
timely.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: In this personal injury action arising from a motor
vehicle accident, plaintiff appeals from an order that denied her
motion for a default judgment and granted defendant’s cross motion
seeking, inter alia, to compel plaintiff to accept service of the late
answer. Contrary to plaintiff’s contention, Supreme Court did not
abuse its discretion in denying the motion and granting the cross
motion.

     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’ ” (Case v Cayuga County, 60
AD3d 1426, 1427, lv dismissed 13 NY3d 770). Furthermore, “[t]he
determination whether an excuse is reasonable lies within the sound
discretion of the motion court” (Lauer v City of Buffalo, 53 AD3d 213,
217; see Armele v Moose Intl., 302 AD2d 986, 987). Here, defendant
met her burden with respect to a meritorious defense by demonstrating
that there is factual support for her defenses (see generally Davidson
v Straight Line Contrs., Inc., 75 AD3d 1143, 1144; Evolution
Impressions, Inc. v Lewandowski, 59 AD3d 1039, 1040).

     Contrary to plaintiff’s further contention, defendant provided a
                                 -2-                          676
                                                        CA 12-01654

reasonable excuse for the delay in serving an answer. Defendant
submitted evidence establishing that she notified her insurer that an
action had been commenced against her, but the insurance company’s
representative misunderstood the conversation and took no action to
begin the process of providing an attorney to represent her. The
insurer promptly provided an attorney after defendant sent it a copy
of the complaint, however, and also attempted to contact plaintiff’s
attorney regarding the matter. In addition, the attorney sent the
answer to plaintiff’s attorney within 40 days after the deadline for
timely service had passed. We agree with defendant that she thereby
demonstrated a reasonable excuse for her default, “which resulted from
the inadvertence of [defendant]’s liability insurer” (Hayes v R.S.
Maher & Son, 303 AD2d 1018, 1018; see Dodge v Commander, 18 AD3d 943,
945; see generally Crandall v Wright Wisner Distrib. Corp., 59 AD3d
1059, 1059-1060). 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). Finally, we conclude that plaintiff
failed to establish that she sustained any prejudice from the brief
delay (see generally Case, 60 AD3d at 1427).




Entered:   July 5, 2013                        Frances E. Cafarell
                                               Clerk of the Court
