Peg Bandwidth, LLC v Optical Communications

Peg Bandwidth, LLC v Optical Communications 2017 NY Slip Op 04233 Decided on May 30, 2017 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 May 30, 2017
Acosta, P.J., Friedman, Andrias, Webber, Gesmer, JJ.
4143N 154391/15

[*1] Peg Bandwidth, LLC, Plaintiff-Appellant,

v

Optical Communications, Defendant-Respondent.

Eckert Seamans Cherin & Mellott, LLC, White Plains (Thomas M. Smith of counsel), for appellant.

Law Offices of Victor A. Worms, New York (Victor A. Worms of counsel), for respondent.

Order, Supreme Court, New York County (Saliann Scarpulla, J.), entered November 4, 2015, which denied plaintiff's motion for summary judgment or a default judgment, and granted defendant's motion for an extension of time to answer, unanimously affirmed, without costs.

While plaintiff satisfied the requirements of CPLR 3215(f) for a default judgment, we decline to disturb the motion court's exercise of its broad discretion in finding that defendant's excuse for its delay in answering the complaint, i.e., law office failure, was reasonable (see e.g. Metropolitan Prop. & Cas. Ins. Co. v Braun, 120 AD3d 1128 [1st Dept 2014]). In addition, the delay was relatively short, plaintiff failed to demonstrate prejudice, and there is a strong preference that matters be decided on the merits (see Gantt v North Shore-LIJ Health Sys., 140 AD3d 418 [1st Dept 2016])).

On its motion for summary judgment, plaintiff failed to tender sufficient evidence to eliminate material issues of fact (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Issues of fact as to whether plaintiff properly terminated the agreement pursuant to its terms arise from the face of the agreement and the affidavit by plaintiff's vice chairman. Moreover, there are issues of fact as to which party breached the agreement, and there has been no discovery yet (see CPLR 3212[f]).

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: MAY 30, 2017

CLERK