(dissenting). This is a dog-bite case arising in February 1991, with the action purportedly commenced eight months later. The parties see the allegedly offending dog differently. The adolescent plaintiff, by her guardian and counsel, refers to a "Rottweiler canine animal.” To defendant, a building superintendent employed by the separately sued corporate owner of the premises where the alleged bite occurred, his pet was "a puppy” which he had kept for "a couple of months” prior to the incident, during which time it "had never bitten nor attacked anyone.”
It is said, loosely speaking, that every dog should have its day. What is less certain is whether every dog should have its day in court, or whether its allegedly vicious propensities (presumably known to its owner) should in this instance be adjudicated on default without hearing a bark, or even a yowl, of protest. Because dogs, in their role as canis amicus curiae, have occasionally inspired eloquent judicial utterance (see, e.g., Schnapp v Lefkowitz, 101 Misc 2d 1075; cf, Coleman v Blake, 128 NYS2d 780), courts should be cautious in reaching such a grimly final outcome. Moreover, it is undisputed here that the dog’s asserted lack of vicious propensity would be a meritorious defense to this action (see, Young v MacIsaac, 187 AD2d 1038, lv denied 81 NY2d 709).
We understand why the majority finds the excuse proffered by the defendant for his default rather paltry, involving as it does considerable dilatory conduct. Nevertheless we find the decision of the motion court an appropriate exercise of its discretion, given the special circumstances presented, and the clear preference of the law for determining litigation on the merits rather than upon default (Broadhollow Bldrs. v Hartford Fire Ins. Co., 178 AD2d 284; Scott v Allstate Ins. Co., 124 AD2d 481, 484).
The imprecations heaped upon defendant’s conduct by the majority must be (and are) delivered with a hypothetical hand in view of the gritty fact that defendant has denied proper service of the summons, and to that end the majority directs a *300traverse hearing. Even if defendant prevails there, however, the case must still be tried against defendant’s corporate employer. Far more conserving of judicial resources was the solution reached by the IAS Court, which relieved the default, albeit sanctioning defendant $500 for his lackadaisical approach. Thus, liability on the merits with respect to defendant and the corporation would have been settled in the same single, consolidated trial without the waste and delay of a traverse, as well as a possible further trial where the aggrieved principal may seek indemnification or contribution from the negligent agent.
The only modification of the IAS Order we would impose would be to add that as a condition of the opening of his default, defendant must file a stipulation to waive any jurisdictional and Statute of Limitations defense, and, sua sponte, to consolidate the two actions if this has not already been done.
Sullivan and Carro, JJ., concur with Tom, J.; Murphy, P. J., and Wallach, J., dissent in an opinion by Wallach, J.
Order, Supreme Court, New York County, entered April 26, 1993, reversed, on the law, the facts and in the exercise of discretion, without costs, and the matter remanded for a traverse hearing.