| Cortlandt Healthcare, LLC v Gantt |
| 2008 NY Slip Op 06953 [54 AD3d 799] |
| September 16, 2008 |
| Appellate Division, Second Department |
| Cortlandt Healthcare, LLC, Respondent, v John H. Gantt,Appellant. |
—[*1] M. Angelo Genova III, New York, N.Y., for respondent.
In an action, inter alia, to recover damages for breach of contract, the defendant appeals from(1) an order of the Supreme Court, Westchester County (Cullen, J.), entered August 17, 2006,which denied his motion to vacate a prior order of the same court entered January 3, 2006,granting the plaintiff's motion for leave to enter a default judgment against him in the principalsum of $57,607, and (2) a judgment of the same court entered September 29, 2006, upon theorder, in favor of the plaintiff and against him.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
The appeal from the intermediate order must be dismissed because the right of direct appealtherefrom terminated with the entry of the judgment in the action (see Matter of Aho, 39NY2d 241, 248 [1976]). The issues raised on appeal from the order are brought up for review andhave been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).
In light of the strong public policy favoring the resolution of cases on the merits, theSupreme [*2]Court has the discretion to vacate a default arisingfrom a defendant's delay in serving an answer pursuant to CPLR 2004 and 3012 (d) where thereis a lack of prejudice to the plaintiff by the short delay, a lack of willfulness on the part of thedefendant, and a meritorious defense (see Jeffrey L. Rosenberg & Assoc., LLC v Lajaunie, 35 AD3d 668[2006]; Jolkovsky v Legeman, 32AD3d 418 [2006]; Rottenberg vPreferred Prop. Mgt., Inc., 22 AD3d 826 [2005]; Yonkers Rib House, Inc. v 1789 Cent. Park Corp., 19 AD3d 687,688 [2005]). In the instant case, however, the Supreme Court providently exercised its discretionin denying the defendant's motion, since he failed to demonstrate the existence of a meritoriousdefense to the action. Spolzino, J.P., Ritter, Dillon, Balkin and Leventhal, JJ., concur.