MLS Real Estate Consultants, Inc. v Eisenberg

MLS Real Estate Consultants, Inc. v Eisenberg 2022 NY Slip Op 04224 Decided on June 30, 2022 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 and Entered: June 30, 2022
Before: Kapnick, J.P., Friedman, Moulton, Shulman, Pitt, JJ.
Index No. 655639/19 Appeal No. 16231&M-2052M-2182 Case No. 2020-04281

[*1]MLS Real Estate Consultants, Inc., Plaintiff-Appellant,

v

Sol Eisenberg Also Known as Chaim Eisenberg et al., Defendants-Respondents.

The Law Office of Jacob Zelmanovitz, Brooklyn (Jacob Zelmanovitz of counsel), for appellant.

Levine & Associates, P.C., Scarsdale (Michael Levine of counsel), for respondents.

Order, Supreme Court, New York County (O. Peter Sherwood, J.), entered October 28, 2020, which denied plaintiff's motion for a default judgment, unanimously affirmed, without costs.

Under the circumstances presented, Supreme Court properly denied plaintiff's motion for a default judgment. Defendants were technically in default when they failed to timely answer or move to dismiss after they filed their notice of appearance (see e.g. Hammond v Equinox Holdings LLC, 197 AD3d 1039, 1040 [1st Dept 2021]). Nonetheless, as Supreme Court noted in the order on appeal, in an earlier hearing on the motion, the court had sua sponte allowed plaintiff to file a late proof of service, which it had failed until then to file. At the same time, the court granted defendants a 30-day extension of time to respond to the complaint, with the time to begin running as of the date of the hearing, and, as the case docket makes clear, defendants timely responded to the complaint within that period. In any event, New York has a strong policy in favor of litigating matters on the merits (see Rosenblatt v New York City Tr. Auth., 122 AD3d 410, 411 [1st Dept 2014]).

We have considered plaintiff's remaining contentions and find them unavailing.

M-2052 - MLS Real Estate, Inc. v Sol Einsenberg

Motion to strike and for sanctions, denied.

M-2182 - MLS Real Estate, Inc. v Sol Einsenberg

Cross motion for sanctions, denied.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: June 30, 2022