A.B. Med. Servs. PLLC v Nationwide Mut. Ins. Co.

[*1] A.B. Med. Servs. PLLC v Nationwide Mut. Ins. Co. 2004 NY Slip Op 51295(U) Decided on October 29, 2004 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 29, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., ARONIN and PATTERSON, JJ.
2003-1486 K C

A.B. MEDICAL SERVICES PLLC DANIEL KIM'S ACUPUNCTURE P.C. D.A.V. CHIROPRACTIC P.C. a/a/o Valeriy Garber, Appellants,

against

NATIONWIDE MUTUAL INSURANCE COMPANY, Respondent.

Appeal by plaintiffs from an order of the Civil Court, Kings County

(M. Solomon, J.), entered on August 20, 2003, which denied their motion for leave to enter a default judgment and granted defendant leave to serve a late answer.

Order unanimously affirmed without costs.

The court did not improvidently exercise its discretion in excusing defendant's default resulting from law office failure (see CPLR 2005) and granting defendant leave to serve a late answer. There is no evidence that the default was willful or that plaintiffs were prejudiced thereby. Defendant, moreover, has shown the existence of a meritorious defense. Under these circumstances, and in consideration of public policy in favor of resolving cases on the merits, the order of the court, which denied plaintiff's motion to enter a default judgment and granted defendant leave to serve a late answer, is affirmed (see Vita v Alstom Signaling, Inc., 308 AD2d 582, 583 [2003]; Lefkowitz v Kaye, Scholer, Fierman, Hays & Handler, 271 AD2d 576, 577 [2000]; see also Goodman v New York City Health & Hosps. Corp., 2 AD3d 581, [2003]; Drake v Drake, 296 AD2d 566, [2002]).
Decision Date: October 29, 2004