Liautaud v. Joseph

Feb 3, 2009
Versions:59 A.D.3d 394
871 N.Y.S.2d 920

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Queens County (Nelson, J.), dated November 19, 2007, which denied their motion pursuant to CPLR 3215 for leave to enter judgment against the defendant upon her failure to interpose a timely answer, and, in effect, granted the defendant’s application to compel the plaintiffs to accept her 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 plaintiffs’ motion for leave to enter a default judgment and, in effect, granting the defendant’s application to compel the plaintiffs to accept her late answer, thereby excusing her delay in serving it (see CPLR 2004, 3012 [d]). Considering the lack of any prejudice to the plaintiffs as a result of the short delay, the defendant’s showing of a reasonable excuse for the delay, the existence of a potentially meritorious defense, and the public policy favoring the resolution of cases on the merits, the Supreme Court properly excused the defendant’s delay in answering (see Falla v Keel Holdings, LLC, 50 AD3d 844, 845 [2008]; A & C Constr. Inc. of N.Y. v Flanagan, 34 AD3d 510 [2006]). Fisher, J.P., Covello, Balkin and Belen, JJ., concur.