Chakmakian v. Maroney

Appellate Division of the Supreme Court of the State of New York

Nov 30, 2010

Versions:78 A.D.3d 1103

911 N.Y.S.2d 651

In an action to recover the proceeds of a loan, the defendants appeal from an order of the Supreme Court, Suffolk County (Pines, J.), dated March 23, 2010, which denied their motion for leave to enter a judgment against the plaintiff upon his failure to serve a reply to their counterclaim, and which granted the plaintiffs application, in effect, to compel them to accept his reply to their counterclaim.

Ordered that on the Court‘s own motion, the defendants’ notice of appeal from so much of the order as granted the plaintiffs application, in effect, to compel the defendants to accept his reply to their counterclaim is treated as an application for leave to appeal from that portion of the order, and leave to appeal is granted (see CPLR 5701 [c]); and it is further,

Ordered that the order is affirmed, with costs.

The Supreme Court providently exercised its discretion in denying the defendants’ motion for leave to enter a judgment against the plaintiff upon his failure to serve a reply to their counterclaim, and in granting the plaintiffs application, in effect, to compel the defendants to accept his reply to their counterclaim (see CPLR 3012 [d]). The defendant failed to show any prejudice resulting from the plaintiffs relatively short delay of approximately three weeks in serving a reply to the counterclaim. Further, in light of the existence of a potentially meritorious defense to the counterclaim, and the public policy favoring the resolution of cases on the merits, the Supreme Court properly excused the plaintiffs failure to serve a timely reply (see Giha v Giannos Enters., Inc., 69 AD3d 564, 565 [2010]; Performance Constr. Corp. v Huntington Bldg., LLC, 68 AD3d 737, 738 [2009]; Klughaupt v Hi-Tower Contrs., Inc., 64 AD3d 545, 546 [2009]; Schonfeld v Blue & White Food Prods. Corp., 29 AD3d 673, 674 [2006]; see also Merchants Ins. Group v Hudson Val. Fire Protection Co., Inc., 72 AD3d 762, 764 [2010]).

Rivera, J.P., Covello, Eng, Leventhal and Austin, JJ., concur.