Heinrichs v. City of Albany

May 1, 1997
Versions:239 A.D.2d 639
656 N.Y.S.2d 569
1997 N.Y. App. Div. LEXIS 4537

Lead Opinion

Peters, J.

Plaintiffs sustained damage to their home at 156 South Allen Street in the City of Albany after a storm sewer backed up into their basement. Plaintiffs filed a timely notice of claim and subsequently commenced an action alleging that defendant was negligent in failing to properly clean and maintain the storm sewer. The summons and complaint were personally *640served on defendant’s Corporation Counsel on June 21, 1996. When defendant failed to answer or appear in the matter within 20 days (see, CPLR 3012 [a]), plaintiffs moved for a default judgment on the issue of liability and sought an inquest to assess plaintiffs’ damages. Defendant opposed the motion on the ground of excusable neglect and requested that Supreme Court permit it to answer. Supreme Court denied plaintiffs’ motion and this appeal ensued.

We affirm. Upon our review of the record, we do not find that Supreme Court improvidently exercised its discretion in denying plaintiffs’ motion for a default judgment. The affidavit by defendant’s counsel and the proposed answer were sufficient to suggest the possibility of a meritorious defense due to the extreme weather conditions. We similarly find Supreme Court to have correctly concluded that defendant’s excuse for the delay, i.e., substantial workload, trial preparation and practice, was reasonable. The record amply demonstrates that defendant’s default was not willful (see, Magie v Fremon, 162 AD2d 857, 858) and there is no indication that plaintiffs were prejudiced by the seven-day delay in answering. In view of this as well as the strong public policy in favor of resolving cases on the merits, we find that Supreme Court did not improvidently exercise its discretion in excusing defendant’s delay in answering the complaint (see, Chu-Reimer v Metpath, Inc., 227 AD2d 860; Clifton Country Rd. Assocs. v Vinciguerra, 203 AD2d 818; see also, Bedard v Najim, 222 AD2d 979).

Cardona, P. J., White, Spain and Carpinello, JJ., concur. Ordered that the order is affirmed, without costs.





Lead Opinion

Appeal from an order of the Supreme Court (Teresi, J.), entered September 30, 1996 in Albany County, which denied plaintiffs’ motion for a default judgment on the issue of liability.