GIACOPELLI v. GUIDUCCI

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Supreme Court, Appellate Division, Second Department, New York.

James J. GIACOPELLI, et al., appellants, v. Dino GUIDUCCI, et al., respondents.

-- January 30, 2007

DAVID S. RITTER, J.P., GLORIA GOLDSTEIN, ANITA R. FLORIO, and JOSEPH COVELLO, JJ. Carriero & Associates, PLLC, North Beach, N.Y. (J. James Carriero of counsel), for appellants. Michael F. Mongelli II, P.C., Flushing, N.Y., for respondents.

In an action, inter alia, to recover damages for breach of a fiduciary duty, the plaintiffs appeal from so much of an order of the Supreme Court, Queens County (Nelson, J.), dated December 21, 2005, as denied their motion pursuant to CPLR 3215 for leave to enter a default judgment against the defendant Dino Guiducci upon his failure to answer the complaint and granted that branch of the defendants' cross motion which was to compel them to accept the answer.

ORDERED that the order is affirmed insofar as appealed from, with costs.

 In seeking a default judgment against the defendant Dino Guiducci, the plaintiffs were not required to comply with the additional notice requirements of CPLR 3215(g)(3) because this is not “an action based upon nonpayment of a contractual obligation” (CPLR 3215[g][3][i];  cf. NYCTL-1 Trust v. Liberty Bay Realty Corp., 21 A.D.3d 1013, 801 N.Y.S.2d 346).   Thus, the Supreme Court should not have denied the plaintiffs' motion based on the failure to provide additional notice pursuant to CPLR 3215(g)(3).

 However, denying the plaintiffs' motion and granting that branch of the defendants' cross motion which was to compel acceptance of their answer was appropriate given, inter alia, the brief delay in answering, the absence of prejudice to the plaintiffs, the existence of potentially meritorious defenses, and the public policy favoring resolution of issues on the merits (see Giladi v. City of New York, 34 A.D.3d 733, 826 N.Y.S.2d 328;  Jolkovsky v. Legeman, 32 A.D.3d 418, 419, 819 N.Y.S.2d 561;  New York & Presby. Hosp. v. Auto One Ins. Co., 28 A.D.3d 441, 811 N.Y.S.2d 584).   Accordingly, we affirm.

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