Gonzalez v. Schiechel

In an automobile negligence action to recover damages for personal injuries, plaintiff appeals from an order of the Supreme Court, Kings County (Jordan, J.), dated October 31, 1984, which granted defendant’s motion, inter alia, to be relieved of his default in appearing and answering, and denied her cross motion for an award of costs.

Order affirmed, with costs.

We agree with Special Term that defendant set forth a meritorious defense in his moving papers and that under the circumstances herein presented the failure of defendant’s insurer to transmit the summons and complaint to its legal *1027department, which resulted in the default, was properly excused by Special Term in the exercise of its discretion (see, CPLR 3012 [d]; 5015 [a]). Gibbons, J. P., Niehoff, Rubin and Kunzeman, JJ., concur.