Myers v City of New York

Myers v City of New York 2013 NY Slip Op 07137 Decided on October 31, 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 October 31, 2013
Mazzarelli, J.P., Renwick, DeGrasse, Feinman, Gische, JJ.
10942N 101341/11

[*1]Nathaniel Myers, Plaintiff-Appellant,

v

The City of New York, et al., Defendants-Respondents.




Sim & Record, LLP, Bayside (Sang J. Sim of counsel), for
appellant.
Michael A. Cardozo, Corporation Counsel, New York (Jane L.
Gordon of counsel), for respondents.

Order, Supreme Court, New York County (Barbara Jaffe, J.), entered May 29, 2012, which denied plaintiff's motion for a default judgment against the City of New York, and granted the City's cross motion for an order deeming its answer to be timely served nunc pro tunc, unanimously affirmed, without costs.

The City's delay in answering on behalf of the individual defendants was reasonable in that it was due to its investigation of its obligation to defend them (see Hirsch v New York City Dept. of Educ., 105 AD3d 522 [1st Dept 2013]; Silverio v City of New York, 266 AD2d 129 [1st Dept 1999]; General Municipal Law 50—k[2]). No prejudice to plaintiff has been shown (see Cirillo v Macy's, Inc., 61 AD3d 538, 540 [2009]), and New York's public
policy strongly favors litigating matters on the merits (see Silverio, 266 AD2d 129). Thus, the motion court properly exercised its discretion in granting the cross motion to compel plaintiff to accept service of the late answer (see CPLR 3012[d]; Lamar v City of New York, 68 AD3d 449 [1st Dept 2009]).

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

ENTERED: OCTOBER 31, 2013

CLERK