Lawrence v Palmer

Lawrence v Palmer 2009 NY Slip Op 00651 [59 AD3d 394] February 3, 2009 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, April 1, 2009

Rosella Lawrence et al., Appellants,
v
Nora L. Palmer, Respondent.

—[*1] Leahey & Johnson, P.C., New York, N.Y. (Peter James Johnson, Peter James Johnson, Jr., James P. Tenney, Joanne Filiberti, and Rosa M. Batista of counsel), for appellants.

Picciano & Scahill, P.C., Westbury, N.Y. (Gilbert J. Hardy and Francis J. Scahill of counsel), for respondent.

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.