DYE v. COLUMBIA

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

Stanley DYE, Appellant, v. Patricia L. COLUMBIA, et al., Respondents.

Decided: February 13, 2001

LAWRENCE J. BRACKEN, ACTING P.J., SONDRA MILLER, LEO F. McGINITY and ROBERT W. SCHMIDT, JJ. Barry Siskin, New York, N.Y., for appellant. MacCartney MacCartney Kerrigan & MacCartney, Nyack, N.Y. (Mary E. Marzolla of counsel), for respondents.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Rockland County (Murphy, J.), dated January 6, 2000, which denied his motion pursuant to CPLR 3215 for leave to enter judgment against the defendants upon their failure to serve an answer on condition that the defendants serve an amended verified answer which does not plead an affirmative defense of lack of personal jurisdiction.

ORDERED that the order is affirmed, with costs.

 The plaintiff was allegedly injured when he was struck by a motor vehicle driven by the defendant Brian Columbia and owned by the defendant Patricia L. Columbia.   In order to successfully oppose the plaintiff's motion for leave to enter judgment based upon their failure to serve an answer, the defendants were required to demonstrate a reasonable excuse for the delay and a meritorious defense (see, Pumarejo-Garcia v. McDonough, 242 A.D.2d 374, 662 N.Y.S.2d 66).   It is undisputed that Brian Columbia filed a pro se answer within the time required for him to appear in the action.   Although Brian Columbia did not comply with the requirements of the CPLR in that he failed to serve the answer on the plaintiff, he made a good faith attempt to appear in the action, and there is no indication in the record that his technical default was either intentional or the result of bad faith.   In addition, he set forth a meritorious defense to the action.   Under these circumstances, and in view of the ameliorative provisions of CPLR 317 as they relate to the defendant Patricia L. Columbia, and the strong public policy that actions should be disposed of on the merits, the plaintiff's motion was properly denied (see, Cerrone v. Fasulo, 245 A.D.2d 793, 665 N.Y.S.2d 761;  Bardi v. Mosher, 235 A.D.2d 869, 653 N.Y.S.2d 45;  Thomas v. Callahan, 222 A.D.2d 1070, 635 N.Y.S.2d 883).

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