MEGA CONSTRUCTION CORP v. BENSON PARK ASSOCIATES LLC (2009)

In an action to recover damages for breach of contract, the defendant appeals from a judgment of the Supreme Court, Richmond County (Maltese, J.), entered February 19, 2008, which, upon an order of the same court dated January 22, 2008, granting the plaintiff's motion pursuant to CPLR 3215 for leave to enter judgment against it upon its default in answering the complaint, and denying its cross motion, inter alia, pursuant to CPLR 2221 to vacate so much of a preliminary conference order of the same court dated August 7, 2007, as directed it to serve its answer by September 14, 2007, and pursuant to CPLR 2004 to extend its time to answer, is in favor of the plaintiff and against it in the principal sum of $276,000.

ORDERED that the judgment is affirmed, with costs.

 We agree with the defendant's contention that the Supreme Court erroneously treated its cross motion, inter alia, to vacate so much of a preliminary conference order of the same court dated August 7, 2007, as directed it to serve its answer by September 14, 2007, and to extend its time to answer as one for leave to renew and reargue.   As the August 7, 2007, preliminary conference order which directed the defendant, inter alia, to serve its answer by September 14, 2007, was not appealable as of right, it was procedurally proper for the defendant to cross-move to vacate and or modify that portion of the order and to extend the time to serve its answer (see Koczen v. VMR Corp., 300 A.D.2d 285, 750 N.Y.S.2d 877;  Pagan v. Penthouse Mfg. Co., 121 A.D.2d 374, 502 N.Y.S.2d 802;  Cohalan v. Johnson Elec. Constr. Corp., 105 A.D.2d 770, 481 N.Y.S.2d 714;  Levine v. St. Luke's Hosp. Ctr., 109 A.D.2d 694, 486 N.Y.S.2d 737).

 However, contrary to the defendant's contentions, it was not an improvident exercise of discretion for the court to deny the defendant's cross motion.   In addition to engaging in a pattern of willful neglect and delay, the defendant also failed to demonstrate the existence of a meritorious defense (see Gainey v. Anorzej, 25 A.D.3d 650, 651, 811 N.Y.S.2d 679;  Palermo v. Rodriguez, 255 A.D.2d 567, 682 N.Y.S.2d 602).

The defendant's remaining contentions are without merit.