| Shapiro v Chawla |
| 2008 NY Slip Op 08313 [55 AD3d 898] |
| October 28, 2008 |
| Appellate Division, Second Department |
| Barry N. Shapiro et al., Respondents, v Surinder S. Chawla etal., Appellants. |
—[*1] Wolfe & Yukelson, PLLC, Port Washington, N.Y. (Noreen M. Revuelta of counsel), forrespondents.
In an action, inter alia, to recover damages for breach of contract, the defendants, Surinder S.Chawla and Harbajan S. Chawla, appeal, as limited by their brief, from so much of an order of theSupreme Court, Nassau County (Bucaria, J.), dated November 21, 2007, as granted that branch of theplaintiffs' motion which was for leave to enter a default judgment against the defendant Surinder S.Chawla, and denied that branch of the cross motion of the defendant Surinder S. Chawla which was tocompel the plaintiffs to accept his late answer.
Ordered that the appeal by the defendant Harbajan S. Chawla is dismissed, as he is not aggrievedby the portion of the order appealed from; and it is further,
Ordered that the order is reversed insofar as appealed from by the defendant Surinder S. Chawla,on the facts and in the exercise of discretion, that branch of the plaintiffs' motion which was for leave toenter a default judgment against the defendant Surinder S. Chawla is denied, and that branch of thedefendants' cross motion which was to compel the plaintiffs to accept the late answer of the defendantSurinder S. Chawla is granted; and it is further,
Ordered that one bill of costs is awarded to the defendant Surinder S. Chawla.
Under the circumstances of this case, the Supreme Court improvidently exercised its discretion ingranting that branch of the plaintiffs' motion which was for leave to enter a default [*2]judgment against the defendant Surinder S. Chawla. On the question ofwhether there was a reasonable excuse for the delay, we note that the plaintiffs caused confusion byfailing to serve the defendant Harbajan S. Chawla, who is the brother of Surinder S. Chawla, andwarning the defendants that they were in default in a letter addressed to a "Mrs. Harbajan S. Chawla"at the residential address of the defendant Surinder S. Chawla. Considering the explanation given bySurinder S. Chawla for his brief delay in appearing and answering, the existence of potentiallymeritorious defenses including, inter alia, that the plaintiffs' action was barred by the applicable statuteof limitations (see CPLR 213 [8]), and in light of the strong public policy in favor of resolvingcases on their merits, the delay in answering should have been excused (see Nickell v Pathmark Stores, Inc., 44AD3d 631 [2007]).
We further note that the plaintiffs suffered no prejudice from the delay. Rivera, J.P., Florio,Angiolillo, McCarthy and Chambers, JJ., concur.