Smoke v Windermere Owners, LLC

Smoke v Windermere Owners, LLC 2013 NY Slip Op 05972 Decided on September 24, 2013 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 September 24, 2013
Friedman, J.P., Freedman, Richter, Feinman, Gische, JJ.
10571N 113051/11

[*1]Gary Smoke, Plaintiff-Appellant,

v

Windermere Owners, LLC, et al., Defendants-Respondents.




Marc Bogatin, New York, for appellant.
Cullen & Troia, P.C., New York (Kevin D. Cullen of counsel),
for respondents.

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered July 20, 2012, which denied plaintiff's motion for a default judgment, unanimously affirmed, without costs.

By submitting the affirmation of their attorney, stating that defendants' verified answer was served two days late due to a calendaring error by their counsel, defendants have shown excusable default for the untimely service of that pleading (see CPLR 2005, 3012[d]; Barsel v Green, 264 AD2d 649 [1st Dept 1999]; Tutuianu v State of N.Y. Dept. of Social Servs., 242 AD2d 476 [1st Dept 1997]). In response, plaintiff has not shown, or even alleged, that he suffered any prejudice as a result of the two-day delay in receiving defendants' answer (see Tak Kuen Nagi v Sze Jing Chan, 159 AD2d 278 [1st Dept 1990]).

Although defendants were not required to show a meritorious defense, we note that they have made such a showing (see Guzetti v City of New York, 32 AD3d 234, 234 [1st Dept 2006]; Nason v Fisher, 309 AD2d 526 [1st Dept 2003]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: SEPTEMBER 24, 2013

CLERK