Appeal from an order of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.), entered June 20, 2007. The order granted defendant's motion to compel acceptance of his late answer and denied plaintiff's cross motion for an inquest and default judgment.

Order reversed without costs, defendant's motion to compel acceptance of his late answer denied, plaintiff's cross motion for leave to proceed to inquest and default judgment granted, and matter remitted to the court below for all further proceedings.

In this action to recover damages for personal injuries arising from an automobile accident, the Civil Court should have denied defendant's motion to compel acceptance of his late answer and granted plaintiff's cross motion seeking an inquest and default judgment. The Appellate Division, Second Department, has held that when a defendant who has failed to answer the complaint seeks to compel acceptance of a late answer, the defendant must provide a reasonable excuse for the default and demonstrate a meritorious defense to the action" (Juseinoski v Board of Educ. of City of N.Y., 15 AD3d 353, 356 [2005]; see Guzetti v City of New York, 32 AD3d 234 [2006]). In the instant matter, with regard to setting forth an excuse for the delay in serving a timely answer, defendant merely submitted an affirmation from his newly retained counsel stating, in bald and conclusory terms, that the delay was due to problems" or law office failure in defendant's insurer's in-house counsel's office. It has been observed that [a]n insurance carrier's delay is insufficient to establish a reasonable excuse for a default" [*2](Juseinoski, 15 AD3d at 356).

With regard to a showing of a meritorious defense, defense counsel submitted her own conclusory statements that the accident was minor in nature and that plaintiff did not sustain a serious injury as statutorily defined (Insurance Law § 5102 [d]). In view of the foregoing and in light of the fact that plaintiff is not deemed to have accepted the untimely answer by virtue of his attorney's retention of it for approximately a week before returning it (see generally Manhattan King David Rest. v Nathanson, 269 AD2d 297 [2000]), the Civil Court improvidently exercised its discretion in granting defendant's motion to compel acceptance of a late answer (see Hosten v Oladapo, 44 AD3d 1006 [2007]; Bekker v Fleischman, 35 AD3d 334 [2006]; Juseinoski, 15 AD3d at 355-356; cf. Vehicle and Traffic Law § 253 [2]).

In support of plaintiff's cross motion for entry of a default judgment following an inquest, plaintiff submitted an affidavit of fact in which he set forth factual allegations describing the sequence of the accident and defendant's liability therefor. With regard to defendant's assertion that plaintiff failed to establish the existence of a serious injury under Insurance Law § 5102 (d), we note that the Appellate Division, Second Department has observed that the only logical conclusion under the No-Fault Law is to treat serious injury as quintessentially an issue of damages" (Van Nostrand v Froehlich, 44 AD3d 54, 60 [2007]), and, therefore, an omission to demonstrate, prior to inquest, the occurrence of a serious injury would not be fatal to plaintiff's recovery of damages (see Abbas v Cole, 44 AD3d 31, 35 [2007]). Accordingly, plaintiff's cross motion is granted.

Defendant's request for this court to direct plaintiff to submit to pre-inquest subpoenas limited to the issue of damages is denied since defendant is a nonappealing party (see Hecht v City of New York, 60 NY2d 57, 61 [1983]; Viafax Corp. v Citigroup Leasing, Inc., 54 AD3d 846 [2008]; cf. Singh v Friedson, 36 AD3d 605, 606 [2007];
Doubrovina v Griffin, 17 Misc 3d 133[A], 2007 NY Slip Op 52041[U] [App Term, 2d & 11th Jud Dists 2007]).

The decision and order of this court entered herein on July 10, 2008 (see 20 Misc 3d 138[A], 2008 NY Slip Op 51561[U]) are hereby recalled and vacated (see motion decided simultaneously herewith).

Rios, J.P., and Pesce, J., concur.

Golia, J., concurs in a separate memorandum.
Golia, J., concurs in the result only, in the following memorandum:

While I agree with the ultimate disposition in the decision reached by the majority, I wish to note that I am constrained to agree with certain propositions of law set forth in cases cited therein which are inconsistent with my position and generally contrary to my views.

However, I find that the exercise of discretion by the lower court in granting defendant's motion to compel the late acceptance of his answer was not warranted under the facts and circumstances presented in this case. More specifically, defendant was provided with a copy of the summons and complaint, as well as actual notice of their service, more than 20 days before the 30-day period in which to answer commenced by the filing of the proof of service (CCA 402 [b]; 410 [b]). [*3]
Decision Date: January 30, 2009