Rodriguez v Triani

[*1] Rodriguez v Triani 2010 NY Slip Op 51256(U) [28 Misc 3d 130(A)] Decided on July 16, 2010 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 16, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and RIOS, JJ
2009-1999 Q C.

Juliana Rodriguez, Appellant,

against

Luis Hector Triani and Guillermo Gonzalez, Respondents.

Appeal from orders of the Civil Court of the City of New York, Queens County (Joseph Esposito, J.), entered August 3, 2009. The orders granted defendants' motions to compel plaintiff to accept their late answers.

ORDERED that the orders are affirmed without costs.

In this action to recover for personal injuries arising from a motor vehicle accident, each defendant moved to compel acceptance of his late answer. Plaintiff opposed, and the Civil Court granted both motions. The instant appeal by plaintiff ensued.

When a defendant who has failed to timely answer the complaint seeks to compel acceptance of his late answer, the defendant must provide a reasonable excuse for the default and demonstrate a meritorious defense to the action (see Lipp v Port Auth. of NY & N.J., 34 AD3d 649 [2006]; Juseinoski v Board of Educ. of City of NY, 15 AD3d 353, 356 [2005]). The determination of what constitutes a reasonable excuse for a default generally lies within the sound discretion of the motion court (see Grutman v Southgate At Bar Harbor Home Owners' Assn., 207 AD2d 526, 527 [1994]; Bergdorf Goodman Inc. v Hillard, 1 Misc 3d 127[A], 2003 NY Slip Op 51544[U] [App Term, 2d & 11th Jud Dists 2003]). Considering the lack of any prejudice to plaintiff as a result of the short delay, defendants' showing of a reasonable excuse for their delay, the existence of a potentially meritorious defense, and the public policy favoring resolution of cases on the merits, the Civil Court did not improvidently exercise its discretion in excusing defendants' delay in answering (see Lawrence v Palmer, 59 AD3d 394 [2009]; Falla v [*2]Keel Holdings, LLC, 50 AD3d 844 [2008]). Accordingly, the orders are affirmed.

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: July 16, 2010