PARKER v. Paul D. Schlegel, Defendant-Respondent. (2001)

Order, Supreme Court, Bronx County (Anne Targum, J.), entered on or about March 27, 2000, which denied plaintiff's motion for a default judgment against defendant Schlegel and granted defendant's cross motion, permitting him to serve an answer to the complaint, unanimously affirmed, without costs.

While defendant Schlegel, apparently through some oversight of his insurer, failed to timely answer the complaint, he had adequately established a meritorious defense.   Further, plaintiff has failed to demonstrate that he suffered prejudice as the result of the delay.   Since we have held that “[u]pon a showing of a lack of prejudice and a meritorious defense, a default judgment may be vacated and the action restored despite the existence of egregious law office failure” (Leary v. Pou Poune, Inc., 273 A.D.2d 8, 708 N.Y.S.2d 108), and since the negligence of the insurer is akin to law office failure (see, Barajas v. Toll Bros., Inc., 247 A.D.2d 242, 669 N.Y.S.2d 35;  Murphy v. D.V. Waste Control Corp., 124 A.D.2d 573, 507 N.Y.S.2d 717;  Ganvey Merchandising Corp. v. Knudsen Elev. Corp., 169 A.D.2d 518, 564 N.Y.S.2d 374), we now find that plaintiff's motion for a default judgment against Schlegel was properly denied.

Reargument granted, and upon reargument, the Decision and Order of this Court entered herein on October 31, 2000 (276 A.D.2d 449, 715 N.Y.S.2d 50), is hereby recalled and vacated.   See M 7231 decided simultaneously herewith.