Shaheen v. Webster Realty Associates

Mar 28, 2005
Versions:16 A.D.3d 663
791 N.Y.S.2d 447
2005 N.Y. App. Div. LEXIS 3320

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, Kings County (M. Garson, J.), dated January 30, 2004, as denied their motion for leave to enter judgment against the defendant upon its failure to appear or answer and granted that branch of the defendant‘s cross motion which was to compel them to accept the answer.

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

The Supreme Court providently exercised its discretion in denying the plaintiffs’ motion for leave to enter judgment against the defendant upon its failure to appear or answer, and in granting that branch of the defendant‘s cross motion which was to compel the plaintiffs to accept their answer (see CPLR 2004, 3012 [d]). In view of the short delay in serving an answer, the absence of prejudice to the plaintiffs, the meritorious nature of the defense, the lack of willfulness on the part of the defendant, and the public policy in favor of resolving cases on the merits, the defendant‘s delay in answering was properly excused (see Daniels v Bovis Lend Lease, Inc., 12 AD3d 342 [2004]; Trimble v SAS Taxi Co. Inc., 8 AD3d 557 [2004]; Goodman v New York City Health & Hosps. Corp., 2 AD3d 581 [2003]).

We have not considered the defendant‘s contentions that the court erred, inter alia, in denying that branch of its cross motion which was to dismiss the complaint for lack of personal jurisdiction since the defendant did not appeal from the order (see Culver & Theisen, Inc. v Starr Realty Co. [NE] LLC, 307 AD2d 910 [2003]). H. Miller, J.P., S. Miller, Goldstein, Mastro and Lifson, JJ., concur.