Winston Rodriguez v Gittie Berkowitz

Rodriguez v Berkowitz 2004 NY Slip Op 09492 [13 AD3d 512] December 20, 2004 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 23, 2005

Winston Rodriguez et al., Appellants,
v
Gittie Berkowitz et al., Defendants, and Eustin Rodriguez, Respondent.

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In an action to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Kings County (Kramer, J.), dated August 8, 2003, which denied their motion for leave to enter judgment against the defendant Eustin Rodriguez upon his default in appearing and deemed that defendant's answer served.

Ordered that the order is affirmed, with costs.

The Supreme Court providently exercised its discretion in denying the plaintiffs' motion for leave to enter judgment against the defendant Eustin Rodriguez upon his default in appearing and deeming that defendant's answer served. The defendant proffered a reasonable excuse for the default, the police accident report indicated the existence of questions of fact as to culpability, and there was no prejudice to the plaintiffs insofar as the case had just commenced and no discovery had taken place (see Gang Liang Guo v Shaybane, 9 AD3d 382 [2004]; Weekes v Karayianakis, 304 AD2d 561 [2003]). Florio, J.P., Goldstein, Adams, Rivera and Spolzino, JJ., concur.