| Spira v New York City Tr. Auth. |
| 2008 NY Slip Op 02772 [49 AD3d 478] |
| March 27, 2008 |
| Appellate Division, First Department |
| Lifsha Spira, Respondent, v New York City TransitAuthority, Appellant. |
—[*1] Law Office of Herschel Kulefsky, New York City (Ephrem J. Wertenteil of counsel), forrespondent.
Order, Supreme Court, New York County (Robert D. Lippmann, J.), entered October 6,2006, which granted plaintiff's motion for a default judgment, unanimously reversed, on the law,the facts and in the exercise of discretion, without costs, and the motion denied on condition thatdefendants pay $5,000 to plaintiff's attorneys within 30 days of service of a copy of the order.
Under the circumstances, it was an improvident exercise of discretion to grant the defaultjudgment. While defendant's excuse for its default, i.e., law office failure by reason ofunderstaffing, is not particularly compelling, it constitutes "good cause" nonetheless (Casianov City of New York, 245 AD2d 244 [1997]), especially since there is no evidence thatplaintiff was prejudiced; on the other hand, defendant will be severely prejudiced if the motion isgranted. Moreover, defendant showed an intent to defend, with its proffer of a stipulation seekingto extend the time to answer before the period expired, and its belated (six months late) serviceof an answer with a meritorious defense. In our view, this is not an appropriate case for departurefrom this State's preference for resolving controversies upon the merits.Concur—Gonzalez, J.P., Williams, Catterson and Moskowitz, JJ.