2016 NY Slip Op 04315
N.Y. App. Div. 1st
2016

Artcorp Inc. v Citirich Realty Corp.

Appellate Division, First Department

June 2, 2016

2016 NY Slip Op 04315 [140 AD3d 417]

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 3, 2016

Moulinos & Associates LLC, New York (Peter Moulinos of counsel), for appellant.

Todd Rothenberg, New Rochelle, for respondent.

Order, Supreme Court, New York County (Nancy M. Bannon, J.), entered October 7, 2015, which denied plaintiff‘s motion for a default judgment and granted defendant‘s cross motion to, among other things, compel plaintiff to accept its late answer, unanimously affirmed, with costs.

In this action seeking to prevent the termination of a commercial lease, the motion court providently exercised its discretion in denying plaintiff‘s motion, made more than a year after defendant‘s purported default, and in granting defendant‘s cross motion (see Guzetti v City of New York, 32 AD3d 234, 238 [1st Dept 2006]). Defendant provided a reasonable excuse for the delay in answering the complaint (see CPLR 2005, 3012 [d]; Marine v Montefiore Health Sys., Inc., 129 AD3d 428, 429 [1st Dept 2015]), and the record clearly demonstrates that defendant did not intend to abandon the case, since it appeared in opposition to plaintiff‘s motion for a Yellowstone injunction and in opposition to plaintiff‘s appeal from the order denying that motion (124 AD3d 545 [1st Dept 2015]). Plaintiff failed to show that it suffered any prejudice as a result of defendant‘s delay, and the strong public policy in favor of resolving cases on the merits warranted denial of plaintiff‘s motion (see Marine, 129 AD3d at 429). Although it was not “essential,” defendant also showed a meritorious defense (Jones v 414 Equities LLC, 57 AD3d 65, 81 [1st Dept 2008]; Guzetti, 32 AD3d at 238). Concur—Acosta, J.P., Saxe, Gische, Webber and Kahn, JJ.