Vines v. Manhattan & Bronx Surface Transit Operating Authority

Jun 14, 1990
Versions:162 A.D.2d 229
556 N.Y.S.2d 337
1990 N.Y. App. Div. LEXIS 7250

Order, Supreme Court, Bronx County (Howard R. Silver, J.), entered October 28, 1988, which denied plaintiff’s motion pursuant to CPLR 3215 (a) for a default judgment against defendant Miller and granted defendants 20 days to serve Miller’s answer, unanimously affirmed, without costs.

Where the public authority defendants interposed an answer in timely fashion and sufficiently demonstrated they were not aware of the pendency of the action against their employee, whom they are bound, under Public Authorities Law § 1212, to indemnify, there was no abuse of discretion in denying this motion to enter a default judgment against the individual employee defendant (see, Willis v City of New York, 154 AD2d 289). In such circumstances, rigid adherence to a requirement that there be an affidavit of merit by the individual defendant himself would be inappropriate (Mufalli v Ford Motor Co., 105 AD2d 642, 643-644). We have previously held the court may extend a defendant’s time to answer pursuant to CPLR 3012 (d) in the absence of a cross motion for such relief (Shure v Village of Westhampton Beach, 121 AD2d 887). Concur—Sullivan, J. P., Carro, Wallach, Smith and Rubin, JJ.