| Cirillo v Macy's, Inc. |
| 2009 NY Slip Op 03032 [61 AD3d 538] |
| April 21, 2009 |
| Appellate Division, First Department |
| Alisa Cirillo, Appellant, v Macy's, Inc., Formerly Knownas Federated Department Stores, Inc., et al., Respondents. |
—[*1] Lester Schwab Katz & Dwyer, LLP, New York (Steven B. Prystowsky of counsel), forrespondents.
Order, Supreme Court, New York County (Michael D. Stallman, J.), entered January 8,2008, which, in an action for personal injuries sustained in a slip and fall in defendants'department store, granted defendants' motion to compel acceptance of their late answer, andorder, same court and Justice, entered January 7, 2008, which denied plaintiff's motion for adefault judgment, unanimously affirmed, without costs.
Defendants served their answer on plaintiff 14 days after it was due and plaintiff rejected theanswer two days after it was served. Approximately three weeks after the answer was rejected byplaintiff, defendants moved to compel plaintiff to accept the answer pursuant to CPLR 3012 (d).Defendants' motion was supported by their attorneys' affirmation attributing the lateness of theanswer to plaintiff's attorney's failure to return numerous telephone calls requesting an extensionof time to serve the answer. Plaintiff opposed with her attorney's affirmation that, while notdenying the phone calls or attributing any prejudice to the 14-day delay, argued that theproffered excuse was unreasonable and that defendants' motion lacked a required affidavit ofmerit. Plaintiff also moved separately for a default judgment against defendants based on theirfailure to answer timely the action. In separate orders, Supreme Court granted defendants'motion and denied plaintiff's motion.
Defendants claim that plaintiff's notices of appeal are jurisdictionally defective and that theappeals must be dismissed. Plaintiff filed two notices of appeal, both dated February 27, 2008.One indicates that plaintiff is appealing an order of Supreme Court, Queens County, datedDecember 26, 2007 and entered January 7, 2008, which granted defendants' motion to vacate anote of issue or strike plaintiff's complaint. The other notice of appeal is identical to the first.
Plaintiff is appealing from orders granting defendants' motion to compel plaintiff to acceptservice of their answer and denying her motion for a default judgment, not from orders vacatinga note of issue or striking plaintiff's complaint. To be sure, plaintiff could only haveappealed from those orders: the only two orders that have been entered in the action are the onesgranting defendants' motion to compel plaintiff to accept the answer and denying plaintiff'smotion for a default judgment. Moreover, the orders granting defendants' motion pursuant to[*2]CPLR 3012 (d) and denying plaintiff's motion for a defaultjudgment were both dated December 26, 2007 and entered January 8, 2008, the dates listed in thenotices of appeal as the dates the orders were executed and filed. That plaintiff inaccuratelylisted in both notices of appeal the county in which the orders were rendered as Queens is of nomoment; the captions of the notices of appeal correctly listed New York County as the venue ofthe action and both notices correctly identified the judge who rendered the orders. At bottom,while sloppily drafted, the content of the notices of appeal did not mislead defendants orotherwise prejudice them, and we therefore exercise our discretion to disregard the inaccuraciesand treat the notices of appeal as valid (see CPLR 5520 [c]; Siegel, PracticeCommentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C5520:1, at 256; cf. Copp vRamirez,62 AD3d 23 [2009]).
With respect to the parties' substantive arguments, Supreme Court has broad discretion ingauging the sufficiency of an excuse proffered by a defendant who failed to serve timely ananswer (see Perellie v Crimson's Rest., 108 AD2d 903, 904 [1985]). Here, SupremeCourt did not improvidently exercise its discretion in concluding that defendants proffered areasonable excuse. Defendants' counsel asserted that he "contacted plaintiff's [counsel's] officenumerous times seeking an extension of time to serve [defendants'] answer," but that plaintiff'scounsel did not return any of those calls. Plaintiff's counsel does not challenge the veracity ofthat assertion. While the excuse is not overwhelming, we cannot conclude that defendants'counsel could not reasonably have expected his request for an extension of time to be granted.Accordingly, we decline to disturb Supreme Court's discretionary determination, particularlybecause defendants' delay both in serving the answer and seeking leave to compel plaintiff toaccept the answer was brief and caused no prejudice (see Jones v 414 Equities LLC, 57 AD3d 65, 81 [2008]; Spira v New York City Tr. Auth., 49AD3d 478 [2008]). An affidavit of merit is not required on a motion for leave to serve a lateanswer where, as here, no default order or judgment has been entered (Jones at 81). Inview of the foregoing, plaintiff's motion for a default judgment was properly denied.Concur—Andrias, J.P., Nardelli, McGuire, Acosta and DeGrasse, JJ.