| Covaci v Whitestone Constr. Corp. |
| 2010 NY Slip Op 08892 [78 AD3d 1108] |
| November 30, 2010 |
| Appellate Division, Second Department |
| Daniel Covaci et al., Appellants, v WhitestoneConstruction Corp., Respondent. |
—[*1] Rafter & Associates, PLLC, New York, N.Y. (Howard K. Fishman of counsel), forrespondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an orderof the Supreme Court, Queens County (Sampson, J.), dated October 8, 2009, which denied theirmotion for leave to enter a judgment against the defendant upon the defendant's failure to appearor answer and granted the defendant's cross motion pursuant to CPLR 3012 (d) to compel themto accept a late answer.
Ordered that the order is affirmed, with costs.
The Supreme Court providently exercised its discretion in denying the plaintiffs' motion forleave to enter a judgment against the defendant upon its failure to appear or answer, and ingranting the defendant's cross motion to compel the plaintiffs to accept its late answer(see CPLR 2004, 3012 [d]). Four days after the time to serve an answer had expired, thedefendant requested an extension of time from the plaintiffs to serve an answer, and thedefendant promptly moved to vacate its default after the request was declined (see SitigusFoods Corp. v 72-02 N. Blvd. Realty Corp., 293 AD2d 597 [2002]; Buderwitz vCunningham, 101 AD2d 821, 822 [1984]). In light of the lack of prejudice to the plaintiffs asa result of the relatively short 25-day delay in serving an answer, the existence of a potentiallymeritorious defense, the lack of willfulness on the part of the defendant, and the public policyfavoring the resolution of cases on the merits, the Supreme Court providently excused the deminimis delay in answering (see Klughaupt v Hi-Tower Contrs., Inc., 64 AD3d 545, 546[2009]; Finkelstein v Sunshine, 47 AD3d 882 [2008]; Schonfeld v Blue & WhiteFood Prods. Corp., 29 AD3d 673 [2006]). Fisher, J.P., Dillon, Balkin, Chambers and Sgroi,JJ., concur.