Puchner v Nastke
2012 NY Slip Op 00456 [91 AD3d 1261]
January 26, 2012
Appellate Division, Third Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, February 29, 2012


Thomas Puchner, Appellants, v Jason Nastke, Respondent, et al., Defendants.

[*1] The West Firm, P.L.L.C., Albany (Yvonne E. Hennessey of counsel), for appellants.

William J. Better, Kinderhook, for respondent.

Peters, J.P. Appeal from an order of the Supreme Court (McGrath, J.), entered October 14, 2010 in Columbia County, which, among other things, granted defendant Jason Nastke's cross motion for leave to serve an answer.

Plaintiffs commenced this action in December 2009 alleging, among other things, negligence and breach of contract arising from the construction and sale of their home in the Village of Valatie, Columbia County. Defendant Jason Nastke (hereinafter defendant) was personally served with a summons with notice on April 19, 2010. Unrepresented by counsel, he attempted to serve plaintiffs with a notice of appearance and demand for complaint on May 11, 2010 and May 20, 2010, but each attempt was rejected as untimely. Nevertheless, plaintiffs served defendant with a verified complaint on June 1, 2010. Defendant retained an attorney in early August and, on August 18, 2010, served plaintiffs with a verified answer. Plaintiffs rejected the answer as untimely and thereafter moved for a default judgment against defendant. Defendant opposed plaintiffs' application and cross-moved for an order compelling plaintiffs to accept service of the answer. Supreme Court denied plaintiffs' motion and granted defendant's cross motion, prompting this appeal.

We affirm. Supreme Court possesses the discretion to permit late service of an answer upon a showing of a reasonable excuse for the delay and a meritorious defense to the complaint (see CPLR 3012 [d]; Williams v Charlew Constr. Co., Inc., 82 AD3d 1491, 1492 [2011]; Kostun v Gower, 61 AD3d 1307, 1308 [2009]; Huckle v CDH Corp., 30 AD3d 878, 879 [2006]). "[W]hether there is a reasonable excuse for a default is a discretionary, sui generis determination to be made by the court based on all relevant factors, including the extent of the delay, whether there has been prejudice to the opposing party, whether there has been willfulness, and the strong public policy in favor of resolving cases on the merits" (Rickert v Chestara, 56 AD3d 941, 942 [2008] [internal quotation marks and citations omitted]; accord Dinstber v Allstate Ins. Co., 75 AD3d 957, 957-958 [2010]; see Watson v Pollacchi, 32 AD3d 565, 565 [2006]).

Here, defendant averred that, for financial reasons, he initially attempted to represent himself in what he presumed would be a frivolous lawsuit. Shortly after being served with the summons with notice, defendant twice submitted a notice of appearance and a demand for a complaint, to which plaintiffs eventually responded. After receiving the complaint, which consisted of nearly 300 numbered paragraphs encompassing 18 causes of action, defendant realized that he could no longer handle the matter on a pro se basis and thus retained an attorney. Counsel promptly attempted service of an answer upon plaintiffs and, upon plaintiffs' rejection of the answer as untimely, expeditiously moved to compel acceptance thereof. Under these circumstances, defendant's delay in answering did not reflect willfulness and "it is readily apparent that defendant[ ] did not intend to abandon [his] defense of this action" (Rickert v Chestara, 56 AD3d at 942; accord Kostun v Gower, 61 AD3d at 1308; see Matter of Toyota Motor Credit Corp. v Impressive Auto Ctr., Inc., 80 AD3d 861, 864 [2011]). Nor have plaintiffs asserted, and we are unable to discern, any prejudice inuring to them as a result of defendant's relatively brief delay. Furthermore, the affidavits submitted by defendant in support of the motion and the proposed verified answer sufficiently demonstrated the existence of arguably meritorious defenses (see Acker v VanEpps, 45 AD3d 1104, 1106 [2007]).[FN*] In view of this and considering the public policy favoring resolution of cases on the merits, we cannot conclude that Supreme Court improvidently exercised its discretion in granting defendant's cross motion to compel plaintiffs to accept service of his answer (see Dinstber v Allstate Ins. Co., 75 AD3d at 958-959; Kostun v Gower, 61 AD3d at 1308; Rickert v Chestara, 56 AD3d at 942; Acker v Van Epps, 45 AD3d at 1105-1106; Bardi v Mosher, 235 AD2d 869, 870 [1997]).

Rose, Kavanagh, McCarthy and Garry, JJ., concur. Ordered that the order is affirmed, with costs.

Footnotes


Footnote *: Although plaintiffs disputed certain factual allegations advanced by defendant in connection with his asserted meritorious defenses, defendant was only required to make a prima facie showing of legal merit to the defenses (see Chase Manhattan Automotive Fin. Corp. v Allstate Ins. Co., 272 AD2d 772, 773 [2000]; David Sanders, P. C. v Sanders, Architects, 140 AD2d 787, 789 [1988]). Thus, despite plaintiffs' assertions to the contrary, Supreme Court was not required to hold a hearing to resolve these factual issues before deciding the motion (cf. Lopez v Northern Assur. Co. of Am., 290 AD2d 628, 629 [2002]; Scielzi v Gold, 213 AD2d 872, 873 [1995]).