Gonzalez v. Seejattan

Dec 10, 2014
2014-07823
Versions:123 A.D.3d 762
996 N.Y.S.2d 536

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Strauss, J.), entered June 16, 2014, which denied his motion pursuant to CPLR 3215 for leave to enter judgment on the issue of liability against the defendant upon his failure to appear or answer the complaint and for an inquest on the issue of damages, and granted the defendant’s cross motion pursuant to CPLR 2004 and 3012 (d) to vacate the default and to compel the plaintiff to accept his late answer.

Ordered that the order is affirmed, with costs.

Under the circumstances of this case, the Supreme Court providently exercised its discretion in denying the plaintiff’s motion, inter alia, for leave to enter judgment against the defendant upon his failure to appear or answer the complaint, and granting the defendant’s cross motion pursuant to CPLR 2004 and 3012 (d) to vacate his default and compel the plaintiff to accept his late answer. In light of the lack of any prejudice to the plaintiff resulting from the defendant’s short two-month delay in appearing or answering the complaint, the lack of willfulness on the part of the defendant, the existence of a potentially meritorious defense, and the public policy favoring the resolution of cases on the merits, the defendant’s default was properly excused (see Hosten v Oladapo, 52 AD3d 658 [2008]; Stuart v Kushner, 39 AD3d 535, 536 [2007]; Schonfeld v Blue & White Food Prods. Corp., 29 AD3d 673, 674 [2006]). Skelos, J.P., Leventhal, Hinds-Radix, Duffy and LaSalle, JJ., concur.