HIGGINS v. BELLET CONSTRUCTION CO INC

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Supreme Court, Appellate Division, First Department, New York.

George HIGGINS, Jr., Plaintiff-Appellant, v. BELLET CONSTRUCTION CO., INC., Defendant-Respondent.

Decided: October 23, 2001

NARDELLI, J.P., TOM, MAZZARELLI, ELLERIN and LERNER, JJ. Jeffrey K. Levine, for Plaintiff-Appellant. Jeffrey K. Van Etten, for Defendant-Respondent.

Order, Supreme Court, New York County (Walter Tolub, J.), entered May 23, 2001, which denied plaintiff's motion for a default judgment, unanimously affirmed, without costs.

Defendant met its burden of demonstrating a meritorious defense and a reasonable excuse for the untimely service of its answer (see, Barajas v. Toll Brothers, 247 A.D.2d 242, 669 N.Y.S.2d 35).   Defendant's counsel affirms that because of a death in the family he was away when the complaint was forwarded to his office and it was then misplaced by his staff.   Upon learning of the complaint, counsel promptly sent an unverified answer to plaintiff, advising that he intended to follow-up with a verified copy as soon as his client's verification had been obtained;  a verified answer was, in fact, served upon plaintiff about one month later.   There is no indication that defendant's short delay prejudiced plaintiff's ability to prosecute this personal injury action and, accordingly, deviation from this State's strong public policy favoring litigation of claims on their merits would not be warranted (see, Silverio v. City of New York, 266 A.D.2d 129, 698 N.Y.S.2d 669;  Meyer v. Rose, 160 A.D.2d 565, 554 N.Y.S.2d 212).   The IAS court's sua sponte grant of affirmative relief to defendant to rectify the late service of its answer was not an improvident exercise of discretion (see, Shure v. Vil. of Westhampton Beach, Inc., 121 A.D.2d 887, 503 N.Y.S.2d 802).   We have considered plaintiff's remaining arguments and find them unavailing.