Kaiser v. Delaney

Nov 9, 1998
Versions:255 A.D.2d 362
679 N.Y.S.2d 686
1998 N.Y. App. Div. LEXIS 11825

—In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Henry, J.), dated February 24, 1998, as (1) denied those branches of their motion which were for leave to enter a judgment against the defendants South Bay Water Taxi and John Sanders upon their default in answering the complaint, and to have the matter set down for an inquest, and (2) granted the cross motion of the defendants South Bay Water Taxi and John Sanders to compel the plaintiffs to accept their answer.

Ordered that the order is affirmed insofar as appealed from, with costs.

The Supreme Court providently exercised its discretion in compelling the plaintiffs to accept the verified answer of South Bay Water Taxi and John Sanders, which was untimely served (see, CPLR 3012 [d]; Mondrone v Lakeview Auto Sales & Serv., 170 AD2d 586). Considering the absence of prejudice to the plaintiffs, the meritorious nature of the defense, and the public policy in favor of resolving cases on the merits, we agree that the 2V2-month delay in serving the answer should be excused (see, CPLR 2005; Van Man Adhesives Corp. v City of New York, 236 AD2d 465; Albin v First Nationwide Network Mtge. Co., 188 AD2d 575; I.J. Handa, P. C. v Imperato, 159 AD2d 484). Mangano, P. J., Joy, Friedmann and Goldstein, JJ., concur.