Hayes v. R.S. Maher & Son, Inc.

—Appeal from an order of Supreme Court, Erie County (Sconiers, J.), entered January 7, 2002, which granted the motion of defendant R.S. Maher & Son, Inc. to vacate a default judgment. It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs. Memorandum: This action seeks damages for serious injuries allegedly sustained by plaintiff Dean C. Hayes as a result of a collision between his pickup truck and a Mack truck owned by defendant R.S. Maher & Son, Inc. (Maher). Plaintiffs appeal from an order of Supreme Court granting the motion of Maher to vacate a default judgment previously entered against it as a consequence of its failure to answer the complaint. The court properly granted Maher’s motion. Maher demonstrated a meritorious defense to the action and reasonable excuse for its default (see Di Lorenzo, Inc. v Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; see also Massachusetts Asset Fin. Corp. v Di Laura, 299 AD2d 948 [2002]; Yacone v Ryan Homes, 216 AD2d 963 [1995]), which resulted from the inadvertence of Maher’s liability insurer (see generally Castillo v Garzon-Ruiz, 290 AD2d 288, 290 [2002]; Parker v I.E.S.I. N.Y. Corp., 279 AD2d 395 [2001], lv dismissed 96 NY2d 927 [2001]; Kondolf v National Grange Mut. Ins. Co., 259 AD2d 1021 [1999]; Barajas v Toll Bros., 247 AD2d 242 [1998]; Chu-Reimer v Metpath, Inc., 227 AD2d 860, 861 [1996]). “Given the brief overall delay, the promptness with which [Maher] moved to vacate the judgment, the lack of any intention on [Maher’s] part to abandon the action, plaintiffs’ failure to demonstrate any prejudice attributable to the delay, and the preference for resolving disputes on the merits, we conclude that [Maher’s] [brief] default in ap [1019] pearing [was properly] excused” (Mayville v Wal-Mart Stores, 273 AD2d 944, 945 [2000]; see Massachusetts Asset Fin. Corp., 299 AD2d at 948-949). Present — Hurlbutt, J.P., Kehoe, Gorski, Lawton and Hayes, JJ.