Deming v. Renaissance Homes, Inc.

Order unanimously reversed on the law without costs, motion granted, order vacated and defendant granted 20 days from the date of service of the order of this Court to serve an answer. Memorandum: Supreme Court abused its discretion in denying the motion of defendant to vacate its default. Plaintiffs were granted a default order against defendant 21 days following service of the summons and complaint. Within 14 days, defendant moved to vacate the 889 default order. Defendant established that the delay in answering the complaint was caused by the negligence and inadvertence of its insurance carrier, that it did not intend to abandon the action, and that it promptly moved to vacate the default order. Defendant therefore established a reasonable excuse for the delay (see, Abramovich v Harris, 227 AD2d 1000; Damselle, Ltd. v 500-512 Seventh, Ave. Assocs., 184 AD2d 367). Furthermore, defendant established a potentially meritorious defense to the complaint through the affidavits of its chief executive officer and its expert (see, Damselle, Ltd. v 500-512 Seventh Ave. Assocs., supra). Thus, the court should have relieved it of the default. (Appeal from Order of Supreme Court, Erie County, Whelan, J.—Vacate Default Order.) Present—Lawton, J. P., Wesley, Callahan, Davis and Boehm, JJ.