PARKER v. I.E.S.I. N.Y. CORPORATION

While defendant Schlegel, apparently through some oversight of his insurer, failed to timely answer the complaint, he had adequately established a meritorious defense. Further, plaintiff has failed to demonstrate that he suffered prejudice as the result of the delay. Since we have held that "[u]pon a showing of a lack of prejudice and a meritorious defense, a default judgment may be vacated and the action restored despite the existence of egregious law office failure . . ." (Leary v. Pou Poune, Inc., 273 A.D.2d 8), and since the negligence of the insurer is akin to law office failure (see, Barajas v. Toll Bros., Inc., 247 A.D.2d 242; Murphy v. D.V. Waste Control Corp., 124 A.D.2d 573; Ganvey Merch. Corp. v. Knudsen Elev. Corp., 169 A.D.2d 518), we now find that plaintiff's motion for a default judgment against Schlegel was properly denied.

The Decision and Order of this Court entered herein on October 31, 2000, is hereby recalled and vacated. See M-7231 decided simultaneously herewith.

THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.