Fidelity & Deposit Co. v. Arthur Andersen & Co.

Majority

p. 693

Fidelity and Deposit Company of Maryland, Appellant, v Arthur Andersen & Co., Respondent.

Submitted September 22, 1983;

decided September 29, 1983

p. 694

APPEARANCES OF COUNSEL

William Hart, Robert Beau Leonard, Steven Gutman and Jan P. Ryan for appellant.

Edward J. Ross for respondent.

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, and the certified question answered in the negative.

p. 695

Whether Special Term’s vacatur of defendant’s default in answering was an abuse of discretion as a matter of law is a question of law reviewable by certified question (Barasch v Micucci, 49 NY2d 594 , 598). The appeal is, therefore, properly before us. But whether the matter be considered under the standard established by chapter 318 of the Laws of 1983, which became law during the pendency of this appeal, or that applicable prior to that enactment, there must be an affirmance.

Required are a reasonable excuse for the delay and an affidavit of merits. Sufficiency of the affidavit is, however, an issue “ordinarily be left to the discretion of the lower courts” (Barasch v Micucci, supra, at p 599 ). Neither Special Term’s conclusion that “Andersen has met the requirement of establishing a meritorious defense * * * by a person with sufficient knowledge of [the] facts,” nor its holding that the course of prior dealings between the parties and the pendency of related civil and criminal litigation demonstrated a reasonable excuse for the delay in answering can be said on the record before us to have been an abuse of discretion as a matter of law.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur in memorandum.

Order affirmed, etc.

Cases cited

Barasch v. Micucci 49 NY2d 594 N.Y. 1980-03-25 at 598 p. 695