Patrick R. Bernard v. City School District Albany

Motion for reargument granted, without costs, and decision dated July 15, 1982 [89 A.D.2d 676], rescinded and order entered August 3, 1982, vacated. Special Term, by order entered September 3, 1981, granted defendants motion for leave to serve an answer and denied plaintiffs cross motion for entry of default judgment. Subsequent to Special Terms order but before this courts determination of the appeal therefrom, the Court of Appeals held that courts were without discretion to excuse the failure to timely file an answer where the excuse was merely law office failure (Eaton v Equitable Life Assur. Soc. of U.S., 56 N.Y.2d 900). This court then reversed since the excuse, which dealt with delay by the insurance company in forwarding the summons and complaint to defendants attorney, was akin to law office failure such that Special Term was without discretion to excuse the delay (Bernard v City School Dist. of Albany, 89 A.D.2d 676). Defendant now moves for reargument based upon two recent decisions of [96 A.D.2d 995 Page 996]