| Siwek v Phillips |
| 2010 NY Slip Op 01848 [71 AD3d 469] |
| March 9, 2010 |
| Appellate Division, First Department |
| Rosemarie Siwek, Respondent, v Lascell L. Phillips et al.,Appellants. |
—[*1] Daniel P. Buttafuoco & Associates, PLLC, Woodbury (Ellen Buchholz of counsel), forrespondent.
Order, Supreme Court, Bronx County (Kenneth L. Thompson Jr., J.), entered February 3,2009, which, to the extent appealed from as limited by the briefs, granted plaintiff's motion for adefault judgment against defendant Ardsley and denied defendants' cross motion to compelplaintiff to accept their answer nunc pro tunc and to transfer the action to Westchester County,unanimously modified, on the law, the motion for a default judgment against Ardsley denied, thecross motion granted to the extent of compelling plaintiff to accept Ardsley's answer nunc protunc, and otherwise affirmed, without costs.
In view of the strong public policy favoring resolution of cases on their merits, the courtimprovidently exercised its discretion in granting default judgment. Ardsley explained that itsdelay was due to failure to receive a copy of the summons and complaint within 30 days ofservice from the Secretary of State, after which it then provided the pleadings to its insurancecarrier, which gave them to its counsel, who interposed an answer. This was a valid excuse forthe delay (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138 [1986]).Furthermore, because the delay was brief (see Princeton Venture Research v Kaye, Scholer,Fierman, Hays & Handler, 256 AD2d 222 [1998]) and plaintiff alleged no prejudiceresulting therefrom (see Cirillo vMacy's, Inc., 61 AD3d 538, 540 [2009]; Acker v VanEpps, 45 AD3d 1104 [2007]), a default judgmentshould not have been entered.
Although Ardsley made a timely demand for a change of venue from the Bronx, it did nottimely move for such relief. A defendant "may move to change the place of trial within fifteendays after service of the demand," unless the plaintiff consents to the change of venue within five[*2]days of service of the demand (CPLR 511 [b]). Ardsley'smotion for a change of venue, made 35 days after service of the demand, must be rejected asuntimely (see Singh v Becher, 249 AD2d 154 [1998]). Concur—Tom, J.P.,Friedman, Sweeny, Nardelli and Abdus-Salaam, JJ.