HSBC Bank USA, N.A. v Donaldson

HSBC Bank USA, N.A. v Donaldson 2020 NY Slip Op 01581 Decided on March 10, 2020 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 March 10, 2020
Gische, J.P., Webber, Gesmer, Kern, JJ.
11232A 11232

[*1] HSBC Bank USA, N.A., Plaintiff-Respondent,

v

Kavian Donaldson, Defendant-Appellant, Gregory Donaldson, et al., Defendants.

Michael Kennedy Karlson, New York, for appellant.

Shapiro DiCaro & Barak, LLC, Rochester (William Jennings of counsel), for respondent.

Order, Supreme Court, Bronx County (Doris M. Gonzalez, J.), entered June 21, 2019, which granted defendant Kavian Donaldson's motion for reargument, and, upon reargument, substantially adhered to the prior order denying defendant's motion for a default judgment on his counterclaim and granting plaintiff's cross motion for leave to reply to the counterclaim, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered on or about April 16, 2019, unanimously dismissed, without costs, as academic.

Plaintiff's excuse for its delay in replying to defendant's counterclaim, i.e., law office failure, is reasonable, in view of the shortness of the delay and the absence of evidence of willfulness or of prejudice to defendant (see e.g. Hertz Vehs., LLC v Mollo, 171 AD3d 651 [1st Dept 2019]; Newyear v Beth Abraham Nursing Home, 157 AD3d 651 [1st Dept 2018]). Contrary to defendant's contention, since plaintiff moved pursuant to CPLR 3012(d), no showing of a meritorious defense was required.

However, we note in any event that plaintiff made such a showing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 10, 2020

DEPUTY CLERK