Cantave v. 170 W. 85 St. Hous. Dev. Fund Corp.

Sep 25, 2018
7149N 160758/16
Versions:164 A.D.3d 1157
81 N.Y.S.3d 901
2018 NY Slip Op 6196
2018 NY Slip Op 06196

Thomas J. Hillgardner, Jamaica, for appellants.

Thomas S. Fleishell & Associates, P.C., New York (Michael Stevens of counsel), for respondent.

Order, Supreme Court, New York County (Gerald Lebovits, J.), entered April 5, 2018, which denied plaintiffs’ motion for a default judgment, and granted defendant‘s cross motion to, inter alia, compel plaintiff to accept its answer, unanimously affirmed, without costs.

The motion court providently exercised its discretion in considering the factors under CPLR 3012(d). The delay in answering was neither short nor particularly lengthy, and the excuse for the delay was properly found not reasonable because the answer was already late at the time plaintiffs served the second complaint that defendant claimed had led it to believe that the instant complaint had been abandoned by plaintiffs. Nevertheless, the defense that the claim for declaratory relief in the instant complaint was moot had merit, there was no showing of either wilfulness or prejudice as a result of the delay, and the policy of resolving disputes on the merits all militatated in favor of the relief granted to defendant (See Artcorp Inc. v Citirich Realty Corp., 140 AD3d 417 [1st Dept 2016]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: SEPTEMBER 25, 2018

CLERK