WATTS v. Juan Miguel Rosario Melo also known as Miguelina Melo et al., Defendants. (2023)

Order, Supreme Court, Bronx County (Ben R. Barbato, J.), entered on or about March 21, 2023, which denied plaintiff's motion for a default judgment against defendant Eufemia Gonzalez Garcia, unanimously affirmed, without costs.

The court providently exercised its discretion in deeming defendant Garcia's answer timely filed and denying plaintiff's motion for a default judgment against her as moot (see Morales v. American United Transp., Inc., 214 A.D.3d 415, 183 N.Y.S.3d 301 [1st Dept. 2023]).  Garcia's delay was unintentional, as she had already appeared in a separate action arising from the same motor vehicle accident (see Matter of Thomas Anthony Holdings LLC v. Goodbody, 210 A.D.3d 547, 176 N.Y.S.3d 780 [1st Dept. 2022]).  In addition, there is no indication that the delay caused any prejudice to plaintiff (see id.;  see also HSBC Bank USA v. Lugo, 127 A.D.3d 502, 503, 9 N.Y.S.3d 6 [1st Dept. 2015], appeal dismissed 33 N.Y.3d 1039, 103 N.Y.S.3d 13, 126 N.E.3d 1053 [2019]).

Contrary to plaintiff's contentions, in the absence of an already existing default order or judgment, an affidavit of merit is not necessary when opposing a plaintiff's motion for a default judgment or in seeking to compel a plaintiff to accept the defendant's late answer (see M & E 73–75 LLC v. 57 Fusion LLC, 121 A.D.3d 528, 529, 995 N.Y.S.2d 4 [1st Dept. 2014]).  Thus, the fact that the answer was verified by Garcia's attorney does not render her opposition to the motion deficient as a matter of law.