| Roccanova v Aussino (USA), Inc. |
| 2010 NY Slip Op 06303 [76 AD3d 522] |
| August 3, 2010 |
| Appellate Division, Second Department |
| Joseph Roccanova, Appellant-Respondent , v Aussino(USA), Inc., Respondent-Appellant, et al., Defendant. |
—[*1] Kenneth F. Peshkin, P.C., Great Neck, N.Y., for respondent-appellant.
In an action to recover damages for breach of contract, the plaintiff appeals, as limited by hisbrief, from so much of an order of the Supreme Court, Suffolk County (Pitts, J.), dated July 20,2009, as denied that branch of his motion which was pursuant to CPLR 3012 (d) to compel thedefendant Aussino (USA), Inc., to accept service of his late reply to the counterclaim, and thedefendant Aussino (USA), Inc., cross-appeals, as limited by its brief, from so much of the sameorder as denied that branch of its cross motion which was for summary judgment dismissing thecause of action seeking to recover the sum of $12,000 as damages for its alleged breach of anoral contract.
Ordered that the order is affirmed insofar as appealed from; and it is further,
Ordered that the order is reversed insofar as cross-appealed from, on the law, and that branchof the cross motion of the defendant Aussino (USA), Inc., which was for summary judgmentdismissing the cause of action seeking to recover the sum of $12,000 as damages for an allegedbreach of an oral contract is granted; and it is further,
Ordered that one bill of costs is awarded to the defendant Aussino (USA), Inc.
The plaintiff failed to timely reply to the counterclaim asserted in the answer of thedefendant Aussino (USA), Inc. (hereinafter the defendant), and the defendant rejected theplaintiff's late reply. More than two years later, the plaintiff moved, inter alia, pursuant to CPLR3012 (d) to compel the defendant to accept service of his late reply to the counterclaim. Tocompel the acceptance of an untimely pleading, a party must provide a reasonable excuse for thedelay and demonstrate a potentially meritorious defense to the action (see Juseinoski v Board of Educ. of City ofN.Y., 15 AD3d 353 [2005]). Here, the Supreme Court did not improvidently exercise itsdiscretion in denying that branch of the plaintiff's motion which was to compel the defendant toaccept service of his late reply to the counterclaim because the plaintiff failed to offer areasonable excuse for his delay (seeHolloman v City of New York, 52 AD3d 568, 569 [2008]; Miller v Ateres Shlomo, LLC, 49AD3d 612, 613 [2008]).[*2]
However, the Supreme Court erred in denying thatbranch of the defendant's cross motion which was for summary judgment dismissing the cause ofaction seeking to recover the sum of $12,000 as damages for the defendant's alleged breach of anoral contract. In the complaint, the plaintiff alleged, among other things, in effect, that thedefendant had refused to pay him the sum of $12,000 to reimburse him for a computer systemthat he had purchased. In support of its cross motion, the defendant submitted, inter alia, thecomplaint and excerpts from the plaintiff's examination before trial, which established, primafacie, that there was no agreement between the parties wherein the defendant agreed toreimburse the plaintiff for his purchase of the computer system. In opposition to the defendant'sprima facie showing, the plaintiff failed to raise a triable issue of fact (see Zuckerman v Cityof New York, 49 NY2d 557, 563 [1980]). Accordingly, that branch of the defendant's crossmotion which was for summary judgment dismissing the cause of action seeking to recover thesum of $12,000 as damages for the defendant's alleged breach of an oral contract should havebeen granted.
In light of our determination, we need not reach the parties' remaining contentions. Covello,J.P., Miller, Angiolillo and Leventhal, JJ., concur.