Kondolf v. National Grange Mutual Insurance

Order unanimously affirmed without costs. Memorandum: Supreme Court did not abuse its discretion in denying plaintiffs motion for a default judgment pursuant to CPLR 3215 (a) and in granting defendant’s cross motion for an order pursuant to CPLR 2004 and 3012 (d) compelling acceptance of the answer. Defendant established that its delay in answering the complaint was the result of an inadvertent error of one of its claims representatives (see, De Nooyer Chevrolet v Polsinello Fuels, 251 AD2d 871; Chu-Reimer v Metpath, Inc., 227 AD2d 860, 861; Jones v R.S.R. Corp., 135 AD2d 900, 901) and that it has a meritorious defense (see, R.C.S. Farmers Mkts. Corp. v Great Am. Ins. Co., 56 NY2d 918, 920). There is no proof that the default was willful or that plaintiff was prejudiced by defendant’s delay in serving the answer (see, Heinrichs v City of Albany, 239 AD2d 639). Plaintiff failed to preserve for our review her contention that the court abused its discretion in refusing to order sanctions. (Appeal from Order of Supreme Court, Ontario County, Scudder, J. — Default Judgment.) Present — Pine, J. P., Hayes, Wisner, Pigott, Jr., and Hurlbutt, JJ.