| Chakmakian v Maroney |
| 2010 NY Slip Op 08889 [78 AD3d 1103] |
| November 30, 2010 |
| Appellate Division, Second Department |
| Edmond C. Chakmakian, Respondent, v Matthew Maroneyet al., Appellants. |
—[*1] Edmond C. Chakmakian, P.C., Hauppauge, N.Y. (Anne Marie Caradonna of counsel), forrespondent.
In an action to recover the proceeds of a loan, the defendants appeal from an order of theSupreme Court, Suffolk County (Pines, J.), dated March 23, 2010, which denied their motion forleave to enter a judgment against the plaintiff upon his failure to serve a reply to theircounterclaim, and which granted the plaintiff's application, in effect, to compel them to accepthis reply to their counterclaim.
Ordered that on the Court's own motion, the defendants' notice of appeal from so much of theorder as granted the plaintiff's application, in effect, to compel the defendants to accept his replyto their counterclaim is treated as an application for leave to appeal from that portion of theorder, and leave to appeal is granted (see CPLR 5701 [c]); and it is further,
Ordered that the order is affirmed, with costs.
The Supreme Court providently exercised its discretion in denying the defendants' motion forleave to enter a judgment against the plaintiff upon his failure to serve a reply to theircounterclaim, and in granting the plaintiff's application, in effect, to compel the defendants toaccept his reply to their counterclaim (see CPLR 3012 [d]). The defendant failed to showany prejudice resulting from the plaintiff's relatively short delay of approximately three weeks inserving a reply to the counterclaim. Further, in light of the existence of a potentially meritoriousdefense to the counterclaim, and the public policy favoring the resolution of cases on the merits,the Supreme Court properly excused the plaintiff's failure to serve a timely reply (see Giha vGiannos Enters., Inc., 69 AD3d 564, 565 [2010]; Performance Constr. Corp. vHuntington Bldg., LLC, 68 AD3d 737, 738 [2009]; Klughaupt v Hi-Tower Contrs.,Inc., 64 AD3d 545, 546 [2009]; Schonfeld v Blue & White Food Prods. Corp., 29AD3d 673, 674 [2006]; see also Merchants Ins. Group v Hudson Val. Fire Protection Co.,Inc., 72 AD3d 762, 764 [2010]). Rivera, J.P., Covello, Eng, Leventhal and Austin, JJ.,concur.