ROTTENBERG v. 5100

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

Shloime ROTTENBERG, etc., et al., appellants, v. PREFERRED PROPERTY MANAGEMENT, INC., et al., defendants, 5100 15th Avenue Owners, Inc., respondent.

Decided: October 31, 2005

BARRY A. COZIER, J.P., FRED T. SANTUCCI, DANIEL F. LUCIANO, STEVEN W. FISHER, and JOSEPH COVELLO, JJ. Herschel Kulefsky, New York, N.Y. (Ephrem J. Wertenteil of counsel), for appellants. Gould & Cimino, New York, N.Y. (Robert P. Colin of counsel), for respondent.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (M. Garson, J.), dated September 24, 2004, which denied that branch of their motion which was pursuant to CPLR 3215 for leave to enter judgment against the defendant 5100 15th Avenue Owners, Inc., upon its default in answering the complaint and granted that defendant's cross motion to compel acceptance of its answer.

ORDERED that the order is affirmed, with costs.

The plaintiff and the defendant 5100 15th Avenue Owners, Inc. (hereinafter Avenue Owners), entered into a stipulation extending Avenue Owners' time to serve its answer to May 10, 2004.   Avenue Owners served an answer two days past that deadline.   Given the brief delay in answering, the lack of willfulness by Avenue Owners, the existence of a possibly meritorious defense, the public policy in favor of resolving cases on the merits, and the lack of prejudice to the plaintiffs, the Supreme Court providently exercised its discretion in denying that branch of the plaintiffs' motion which was for leave to enter judgment against Avenue Owners and in granting the cross motion of Avenue Owners to compel acceptance of its late answer (see Bunch v. Dollar Budget, Inc., 12 A.D.3d 391, 783 N.Y.S.2d 829;  Eckna v. Kesselman, 11 A.D.3d 507, 782 N.Y.S.2d 845;  Sippin v. Gallardo, 287 A.D.2d 703, 703-704, 732 N.Y.S.2d 62;  Khanna v. Premium Food & Sports Enter., 279 A.D.2d 508, 509, 720 N.Y.S.2d 349).

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