Dawley v. Minier

— Order modified on the law and as a matter of discretion and as modified affirmed without costs, in accordance with the following memorandum: Special Term abused its discretion in ordering defendant’s insurance carrier to pay a sanction of $2,500 as a condition for permitting defendant to serve a late answer. The record reveals that defendant’s failure to interpose an answer was not the result of neglect or a ploy, but rather was based on the insurance carrier’s good-faith belief that the case had been settled. The summons and complaint was served upon the defendant on February 19, 1986. Defense counsel received the summons and complaint from defendant’s insurance carrier on March 4, 1986 and prepared an answer on the same day. On March 7, 1986 an agent of the carrier offered the policy limits to a member of the law firm representing plaintiff and was told that the attorney handling the file was away but would be informed of the offer when he returned. The agent then informed defense counsel that the case had been settled. It was not until April 17, 1986 that defense counsel learned from plaintiff’s counsel that the case had not been settled. While monetary sanctions may be justified in certain instances (see, CPLR 3012 [d]), this is not such a case. Plaintiff has failed to demonstrate any prejudice from the short delay occasioned by defendant’s failure to answer timely. Moreover, there is no evidence that defendant, his counsel, or his carrier purposely caused the delay, or was attempting to harass the plaintiff in any way. Under these circumstances, a monetary sanction was unnecessary and inappropriate. Additionally, the insurance carrier is not a party to the action and thus is not subject to the court’s order. 956 All concur, except Pine and Balio, JJ., who dissent and vote to affirm, in the following memorandum.