Parker v. IESI N. Y. Corp.

Order, Supreme Court, Bronx County (Anne Targum, J.), entered on or about March 27, 2000, which denied plaintiffs motion for a default judgment against defendant Schlegel and granted that defendant’s cross motion, permitting him to serve an answer to the complaint, unanimously affirmed, without costs.

While defendant Schlegel, apparently through some oversight of his insurer, failed to timely answer the complaint, his insurer had entered into settlement negotiations with plaintiff, who was thus aware that Schlegel, far from being willfully unresponsive to the complaint, was attempting to resolve the matter and was prepared to mount a defense in the event that a settlement could not be reached. Because plaintiff, under these circumstances, sustained no prejudice by reason of Schlegel’s delay in answering, and Schlegel has shown that he has a meritorious defense, plaintiffs motion for a default judgment against Schlegel was properly denied (see, Leary v Pou Poune, Inc., 273 AD2d 8). Concur — Nardelli, J. P., Williams, Mazzarelli, Andrias and Saxe, JJ. [Recalled and vacated 279 AD2d — (Jan. 25, 2001).]