Dusovic v. New Jersey Transit Bus Operations, Inc.

[635] Special Term acted properly in excusing the defendant’s default in serving its answer and extending the time in which the service of the answer could be completed by the defendant. The defendant had clearly indicated its intent to defend the action, the delay in serving the answer was brief and nondeliberate, and the plaintiff was not prejudiced by the delay (see, Pettinato v Sunscape At Bay Shore Home Owners Assn., 97 AD2d 434). Moreover, the defendant has set forth (in its motion papers and proposed answer) a meritorious defense to the action. Specifically, the defendant contends that the plaintiff’s breach of contract claim is based upon the collective bargaining agreement between the defendant and the plaintiff’s union. The defendant has denied any breach of that agreement and has alleged that the plaintiff has been granted all his rights pursuant to the contract, detailing compliance with the contract provisions concerning the plaintiff’s discharge, and concluding that "the plaintiff was afforded all redress to which he was entitled”, thereby warranting dismissal of the complaint (cf. Parker v Borock, 5 NY2d 156; Arizaga v New York City Health & Hosps. Corp., 96 AD2d 457; Meyers v Sunnydale Farms, NYLJ, Sept. 9, 1986, p 14, cols 3-6; p 15, col 1). A review of the record before Special Term does not warrant a conclusion that the defendant should be collaterally estopped from pursuing its proposed defense by any findings made by an Administrative Law Judge in his determination of the plaintiff’s claim for unemployment benefits. As stated by the Court of Appeals: "[W]hen collateral estoppel is in issue, the question as to whether a party had a full and fair opportunity to litigate a prior determination, involves a practical inquiry into ’the realities of litigation. A comprehensive list of the various factors which should enter into a determination whether a party has had his day in court would include such considerations as the size of the claim, the forum of the prior litigation, the use of initiative, the extent of the litigation, the competence and experience of counsel, the availability of new evidence, indications of a compromise verdict, differences in the applicable law and foreseeability of future litigation’ (see, also, Restatement, Judgments 2d [Tent Draft No. 3], § 88)” (Gilberg v Barbieri, 53 NY2d 285, 292 [emphasis supplied]). In this case, the defendant did not initiate the administrative proceeding, and, at that prior proceeding, the defendant [636] was not represented by counsel and only produced hearsay evidence in support of its defense. There is no suggestion that the defendant was aware of the possibility that an award of unemployment benefits to the plaintiff might later be used to conclusively establish liability in this suit for damages in the amount of $45,000, which action was not initiated until after the issuance of the Administrative Law Judge’s decision (see, Gilberg v Barbieri, supra, pp 292-293). Under these circumstances, "it is not unfair to permit [the defendant] one opportunity to fully defend the * * * complaint on the merits in a manner consistent with the potential magnitude of the suit” (Gilberg v Barbieri, supra, p 294). This matter is distinguishable from the situation in Ryan v New York Tel. Co. (62 NY2d 494), wherein the plaintiff Edward Ryan, who was sought to be estopped by an administrative determination made after an unemployment benefits hearing, had initiated the prior administrative proceeding and had a clear incentive and did litigate thoroughly the issue of his discharge. In addition, under the circumstances, we find that Special Term did not abuse its discretion by declining to assess a penalty because of the defendant’s default. Accordingly, the order appealed from should be affirmed. Mollen, P. J., Weinstein and Lawrence, JJ., concur.