Constable v. Matie , 536 N.Y.S.2d 357 ( 1988 )

— Order unanimously reversed on the law without costs and motion granted, in accordance with the following memorandum: Special Term improvidently exercised its discretion in denying the motion of defendant, West Seneca Ford, Inc., for an extension of time to answer pursuant to CPLR 2004. A court enjoys broad discretion when considering such motion where, as here, the motion precedes an application for a default judgment (General Acc. Group v Scott, 96 AD2d 759, appeal dismissed 60 NY2d 651; see also, A & J Concrete Corp. v Arker 54 NY2d 870, 872; Dolgin Enters, v Central Adj. Bur., 118 AD2d 680, 681). Here, defendant acted promptly. It immediately forwarded the summons and complaint to its insurance broker, whose representative gave assurances that the matter would be "taken care of’. The summons and complaint were somehow lost in the agent’s claims department. The insurance carrier did not receive notice of the claim until July 15, 1987, about three months after the time to answer had expired. The carrier promptly contacted plaintiffs’ attorney, who declined to grant an extension of time to answer. An answer served by mail upon plaintiffs’ attorney was rejected on August 14, 1987. Defendant then moved for an order pursuant to CPLR 2004.

We conclude that defendant established a meritorious defense, the delay did not result in any prejudice to plaintiffs and there was no showing that the delay was willful or deliberate (see, Murphy v D. V. Waste Control Corp., 124 AD2d 573; see also, A & J Concrete Corp. v Arker, supra, at 872). Moreover, when no prejudice to a party is shown, courts favor the resolution of cases on their merits (Scott v Allstate Ins. Co., 124 AD2d 481, 484; BPS Mgt. Corp. v New York Tit. Ins. Co., 115 AD2d 921; Aces Mechanical Corp. v Cohen Bros. Realty & Constr. Corp., 99 AD2d 455, 456, appeal after remand 136 AD2d 503). (Appeal from order of Supreme Court, Erie County, Flaherty, J. — motion to file late answer.) Present— Denman, J. P., Boomer, Balio, Lawton and Davis, JJ.