Hosten v Oladapo

2008 NY Slip Op 05656

Decided on June 17, 2008

Appellate Division, Second Department

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 17, 2008
APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
STEVEN W. FISHER, J.P.
ANITA R. FLORIO
DANIEL D. ANGIOLILLO
THOMAS A. DICKERSON
ARIEL E. BELEN, JJ.
2008-02173
(Index No. 19785/06)






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


DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Kramer, J.), dated January 14, 2008, which denied his renewed motion pursuant to CPLR 3215 for leave to enter judgment against the defendant upon his default in appearing or answering the complaint and for an inquest on the issue of damages, and granted the defendant's cross motion pursuant to CPLR 3102(d) to compel the plaintiff to accept his late answer.

ORDERED that the order is affirmed, with costs.

Under the circumstances of this case, the Supreme Court providently exercised its discretion in denying the plaintiff's renewed motion, inter alia, for leave to enter judgment against the defendant upon his default in appearing or answering the complaint, and granting the defendant's cross motion pursuant to CPLR 3102(d) to compel the plaintiff to accept his late answer. The defendant's "delay in appearing and answering was brief, the default was not willful, and there was no evidence that the plaintiff was prejudiced" (Bunch v Dollar Budget Inc., 12 AD3d 391, 391; see Jolkovsky v Legeman, 32 AD3d 418; Friedman v Ostreicher, 22 AD3d 798, 799). Moreover, public policy favors the resolution of cases on the merits (see Bunch v Dollar Budget, 12 AD3d 391).
FISHER, J.P., FLORIO, ANGIOLILLO, DICKERSON and BELEN, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court