D'Aquila v Marchena

2007 NYSlipOp 01066

February 6, 2007

Appellate Division, Second Department

As corrected through Wednesday, April 11, 2007

Christopher J. D'Aquila, Respondent, v Thomas A. Marchena, Appellant.

—[*1]Robert P. Tusa (Sweetbaum & Sweetbaum, Lake Success, N.Y.[Marshall D. Sweetbaum] of counsel), for appellant.

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Nassau County (Mahon, J.), dated May 23, 2006, which granted the plaintiff's motion for leave to enter a judgment against it upon his default in answering and scheduling an inquest.

Ordered that the order is reversed, on the law and as a matter of discretion, with costs, and the plaintiff's motion for leave to enter a judgment against the appellant upon his default in answering and scheduling an inquest is denied.

Under the circumstances of this case, including the defendant's extraordinarily brief delay in answering, the Supreme Court should have denied the plaintiff's motion (see Albano v Nus Holding Corp., 233 AD2d 280, 281 [1996]). Rivera, J.P., Spolzino, Fisher, Lifson and Dickerson, JJ., concur.