| Feder v Eline Capital Corp. |
| 2011 NY Slip Op 00177 [80 AD3d 554] |
| January 11, 2011 |
| Appellate Division, Second Department |
| Moshe Feder, Appellant, v Eline Capital Corp., Defendant, andThe Avenue CafÉ, Inc., Respondent. |
—[*1] Gannon, Lawrence & Rosenfarb, New York, N.Y. (David A. Drossman of counsel), forrespondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of theSupreme Court, Kings County (Spodek, J.), dated December 14, 2009, which denied his motion forleave to enter a default judgment on the issue of liability against the defendant The Avenue CafÉ,Inc., and granted the cross motion of the defendant The Avenue CafÉ, Inc., to compel him toaccept late service of its answer.
Ordered that the order is affirmed, with costs.
The Supreme Court providently exercised its discretion in denying the plaintiff's motion for leave toenter a default judgment on the issue of liability against the defendant The Avenue CafÉ, Inc.(hereinafter Avenue Cafe), and in granting Avenue CafÉ's cross motion to compel the plaintiff toaccept late service of its answer. Considering the lack of any prejudice to the plaintiff as a result ofAvenue CafÉ's relatively short delay in serving its answer, the existence of a potentiallymeritorious defense, and the public policy favoring the resolution of cases on the merits, the SupremeCourt properly excused Avenue CafÉ's delay in answering (see Wiesel v Friends Exhaust Sys., Inc., 71 AD3d 1006 [2010]; Falla v Keel Holdings, LLC, 50 AD3d844, 845 [2008]; Schmidt v City ofNew York, 50 AD3d 664 [2008]; Stuart v Kushner, 39 AD3d 535 [2007]; Schonfeld v Blue & White Food Prods.Corp., 29 AD3d 673, 674 [2006]). Covello, J.P., Eng, Chambers and Hall, JJ., concur.