Benson v. Doherty Moving Corp.

Order of the Supreme Court, New York County (S. J. Crane, J.), entered October 21,1982, which denied the motion of defendants, Sutton Manor Owners, Inc., and Brown Harris, Stevens, Inc., to compel plaintiff to accept their answer, reversed without costs of the appeal, on the law, the facts and in the exercise of discretion and the motion granted upon condition that the moving defendants pay to plaintiff $2,000 costs of the motion within 20 days after the entry of the order herein. In the event that the moving defendants shall fail to pay the costs as aforesaid the order is affirmed, with costs. Plaintiff is tenant in premises 430 E. 56 Street, New York City. In October, 1981 the building was converted into co-operative ownership at which time the sponsor transferred title to the building to Sutton Manor which retained Brown Harris as its managing agent. Plaintiff did not purchase her apartment and the proprietary lease to the apartment was taken over by the sponsor which remained her landlord under the lease existing at the time of the transfer of title to the co-operative. On January 28, 1982 the sponsor obtained a default order of eviction against plaintiff. Thereafter, on February 25, 1982 Doherty Moving Corporation 422 entered plaintiff’s apartment and removed her furnishings and belongings, apparently retained by the sponsor to do so under a warrant of eviction. Subsequently, plaintiff brought action against the sponsor, contending that the first notice to her of the eviction proceeding was the removal of her property. As a result of these latter proceedings the warrant of eviction was vacated and she was restored to possession. On May 12,1982, plaintiff brought this action contending that Doherty had damaged her property in the process of removal and storage and against the co-operative corporation and its managing agent for damages for her removal because the lobby staff at the building negligently failed to notify her that the papers initiating the eviction proceeding had been left with them for delivery to her and in failing to deliver to her a second copy which had been sent to her by the process server through the mail. The summons and complaint were sent by Sutton Manor to its insurer. The insurer acknowledged receipt of these documents on June 8,1982. Thereafter plaintiff twice extended the insurer’s time to answer. On granting the second extension, which expired on July 21, 1982, plaintiff’s counsel notified the insurer that he was being pressed by his client and that no further extensions would be granted. Notwithstanding this admonition the insurer orally requested a further 30-day extension on July 20. This request was rejected. It was followed by a written notification from the plaintiff’s attorney to the insurer that if the insurer did not have an answer in plaintiff’s attorney’s office by July 28, 1982 any service attempted thereafter would be rejected. The insurer’s answer arrived at the office of the plaintiff’s attorney on August 16. It was rejected. The insurer then moved on August 27 to compel the plaintiff to accept its answer. Special Term denied the motion. We would reverse conditionally. That the defendant’s insurer was guilty of law office failure is too obvious for comment. However, such dereliction is no longer a bar to relief. (CPLR 2005, 3012, subd [d]). More importantly, the question is whether defendants have a meritorious defense. It was the sponsor which brought the eviction proceeding and obtained the order of eviction. The moving company was retained by the sponsor to remove and store the plaintiff’s property. Notably, the sponsor is not made a party to this action. We are not informed whether there is another action pending against it. At the least, there are serious questions as to the merit to the action in the absence of complicity between the sponsor and the moving defendants, and none is alleged. In these circumstances we are of the opinion that defendants should be permitted to defend, particularly in light of the brevity of the default. However, considering the actions of the insurer, and particularly in light of the insurer’s disregard of the express statement of the plaintiff’s attorney that no further adjournment would be granted we deem it appropriate to impose substantial costs as a condition to compelling plaintiff to accept their answer. Concur — Asch, Silverman and Bloom, JJ.