UNIT BOOKS INC v. TOMPKINS (2026)

Order, Supreme Court, New York County (Robert R. Reed, J.), entered on or about March 9, 2026, which denied plaintiff's motion for a default judgment and granted defendant's motion for additional time to answer the complaint, unanimously affirmed, with costs.

Supreme Court providently exercised its discretion in denying plaintiff's motion for a default judgment and granting defendant's motion for an extension of time to answer the complaint, especially in light of New York's strong public policy in favor of litigating matters on the merits (see Hertz Vehs., LLC v. Mollo, 171 A.D.3d 651, 651, 99 N.Y.S.3d 288 [1st Dept 2019] ).  Defendant's delay in answering was only four months, and plaintiff does not allege any prejudice from the relatively short delay (see Sukhu v. R.A.I.N. Home Attendant Servs., Inc., 190 A.D.3d 468, 468, 140 N.Y.S.3d 205 [1st Dept 2021] ).  Furthermore, defendant's excuse for the delay in responding — that she did not receive the summons and complaint — was reasonable given that plaintiff failed to provide evidence that defendant lived at any of the addresses where service was attempted (see id. at 468, 140 N.Y.S.3d 205).  When plaintiff's process server tried to serve defendant at an address in Jamaica, he was informed by security staff that she no longer lived in the building.  Similarly, when the process server tried over the course of four days to serve defendant at an address on Greene Avenue in Brooklyn, a tenant at the building, a four-story house, informed the process server that he did not know defendant.

We reject plaintiff's assertion that defendant's affidavit in support of her motion was conclusory and unsubstantiated.  Defendant's affidavit specifically stated that she did not live at the Jamaica address in 2025, when plaintiff attempted service there, and that she had not lived at the Greene Street address since 2015.  She further averred that although she maintained a mailbox at a UPS Store in Bayside, Queens, she did not receive any documents related to the action at that location.  Plaintiff provides no legal authority for the claim that defendant must disclose her actual address to prove she was not served.

We also reject plaintiff's argument that defendant's failure to respond to the summons and complaint was willful in light of the publicity in online media surrounding the filing of the action.  Defendant denied awareness of the action until October 2025, and plaintiff presented no evidence to refute her denial.  The statement by TMZ that it sought comment from defendant does not demonstrate that she received notice of the lawsuit, and indeed, TMZ did not state that it was successful in contacting her.

Defendant was not required to offer a meritorious defense to plaintiff's claims, as plaintiff never obtained a default order or judgment (see id.;  Naber Elec. v. Triton Structural Concrete, Inc., 160 A.D.3d 507, 508, 75 N.Y.S.3d 152 [1st Dept 2018] ).  In any event, defendant was not obligated to prove that she would prevail, only that her defenses were potentially meritorious, and as Supreme Court properly concluded, defendant's affidavit asserted viable defenses to the action (see Matter of Thomas Anthony Holdings, LLC v. Goodbody, 210 A.D.3d 547, 547, 176 N.Y.S.3d 780 [1st Dept 2022] ).

We have considered plaintiff's remaining contentions and find them unavailing.