CURRY v. NEW YORK CITY METROPOLITAN TRANSIT AUTHORITY (2006)

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

Cornell CURRY, Plaintiff-Appellant, v. NEW YORK CITY METROPOLITAN TRANSIT AUTHORITY and its Police Department, Defendant-Respondent.

Decided: June 22, 2006

SAXE, J.P., MARLOW, NARDELLI, CATTERSON, McGUIRE, JJ.

Cornell Curry, appellant pro se. Michael A. Cardozo, Corporation Counsel, New York (Norman Corenthal of counsel), for respondent.

Order, Supreme Court, New York County (Robert D. Lippmann, J.), entered January 24, 2006, which denied plaintiff's motion for a default judgment, unanimously affirmed, without costs.

The Supreme Court properly denied plaintiff's motion for a default judgment because, inter alia, plaintiff did not show that defendant's relatively short delay in serving its answer prejudiced him. Moreover, the delay was, at least in part, attributable to the fact that the named defendant is nonexistent, thus creating uncertainty about the identity of the actual entity intended to be sued (CPLR 3012[d]; see DeMarco v. Wyndham Intl., 299 A.D.2d 209, 749 N.Y.S.2d 139 [2002]; Higgins v. Bellet Constr. Co., 287 A.D.2d 377, 731 N.Y.S.2d 446 [2001] ).

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