Jorge Pena–Vazquez, et al., Plaintiffs–Appellants, v. Tell V. Beharry, Defendant, Frank A. Cesario, et al., Defendants–Respondents.

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

Jorge Pena–Vazquez, et al., Plaintiffs–Appellants, v. Tell V. Beharry, Defendant, Frank A. Cesario, et al., Defendants–Respondents.

4644N

Decided: March 29, 2011

Mazzarelli, J.P., Saxe, Renwick, DeGrasse, Richter, JJ. Mitchell Dranow, Sea Cliff, for appellants. Methfessel & Werbel, New York (Frederic P. Gallin of counsel), for respondents.

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Order, Supreme Court, Bronx County (Howard H. Sherman, J.), entered on or about March 4, 2010, which denied plaintiffs' motion for a default judgment against defendants Frank A. Cesario and Mid Island Auto Wreckers, Inc. and, sua sponte, deemed said defendants' answer timely served nunc pro tunc, unanimously affirmed, without costs.

The court providently exercised its discretion in denying plaintiffs' motion and deeming defendants' answer timely served nunc pro tunc.   Plaintiffs' acceptance of defendants' answer, without objection, constituted a waiver of the late service and default (see Ligotti v. Wilson, 287 A.D.2d 550, 551 [2001] ).   In any event, the settlement discussions between plaintiffs and defendants' insurer constitute a reasonable excuse for defendants' delay in answering (see CPLR 3012[d];  see also Finkelstein v. East 65th St. Laundromat, 215 A.D.2d 178 [1995] ).   Contrary to plaintiffs' contention, defendants were not required to demonstrate the existence of a meritorious defense (see Verizon N.Y. Inc. v. Case Constr.   Co., Inc., 63 AD3d 521 [2009] ).

The court providently exercised its discretion in considering defendants' surreply.   The court granted permission for the filing of the surreply, which contained courtesy copies of affidavits that had been filed with the Clerk prior to the motion return date (see generally Barbuto v. Winthrop Univ. Hosp., 305 A.D.2d 623, 623–624 [2003] ).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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CLERK