Jorge v Conlon

Jorge v Conlon 2015 NY Slip Op 08982 Decided on December 8, 2015 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 8, 2015
Tom, J.P., Friedman, Saxe, Gische, JJ.
16359N 300803/12

[*1] Aldo Jorge, Plaintiff-Appellant, ——

v

Police Officer Edward Conlon, etc., Defendant-Respondent, The City of New York, et al., Defendants.

G. Wesley Simpson, P.C., Brooklyn (G. Wesley Simpson of counsel), for appellant.

Zachary W. Carter, Corporation Counsel, New York (Emma Grunberg of counsel), for respondent.

Order, Supreme Court, Bronx County (Mitchell J. Danziger, J.), entered on or about April 2, 2014, which granted defendants' motion to renew and, upon renewal, denied plaintiff's motion for a default judgment against defendant Police Officer Edward Conlon, and directed plaintiff to accept service of defendants' amended answer upon certain conditions, unanimously affirmed, without costs.

The motion court providently exercised its discretion in granting defendants' motion to renew plaintiff's motion for a default judgment. Defendants were entitled to renewal in the interest of justice, even though the information in Officer Conlon's affidavit could have been, but was not, provided by defendants in opposition to plaintiff's original motion (see Cruz v Bronx Lebanon Hosp. Ctr., 73 AD3d 597, 598 [1st Dept 2010]). Plaintiff failed to show any prejudice resulting from the officer's delay in answering the complaint (see Hines v New York City Tr. Auth., 112 AD3d 528, 528 [1st Dept 2013]). At the time defendants filed their motion for renewal, discovery had not begun, and defendant City had already asserted in the amended answer filed on Officer Conlon's behalf the same defense of probable cause that it had asserted in its original, timely-filed answer (see Drawhorn v Iglesias, 254 AD2d 97, 97 [1st Dept 1998]). Moreover, defendants were not required to submit an affidavit of merit from Officer Conlon in opposition to

plaintiff's original motion (see Silverio v City of New York, 266 AD2d 129, 129 [1st Dept 1999]; see also Arrington v Bronx Jean Co., Inc., 76 AD3d 461, 462 [1st Dept 2010]).

We have considered plaintiff's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 8, 2015

CLERK