| Zanelli v JMM Raceway, LLC |
| 2011 NY Slip Op 02871 [83 AD3d 697] |
| April 5, 2011 |
| Appellate Division, Second Department |
| Marilyn Zanelli, Appellant, v JMM Raceway, LLC, et al.,Defendants, and Stasi Brothers Asphalt Corporation, Respondent. |
—[*1] Martyn, Toher & Martyn, Mineola, N.Y. (Joseph S. Holotka of counsel), forrespondent.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by herbrief, from so much of an order of the Supreme Court, Queens County (Butler, J.), entered June7, 2010, as denied her motion for leave to enter judgment on the issue of liability against thedefendant Stasi Brothers Asphalt Corporation, upon its default in appearing or answering thecomplaint.
Ordered that the order is affirmed insofar as appealed from, with costs.
The Supreme Court providently exercised its discretion in denying the plaintiff's motion forleave to enter judgment on the issue of liability against the defendant Stasi Brothers AsphaltCorporation (hereinafter the defendant), upon its default in appearing or answering thecomplaint. Considering the lack of any prejudice to the plaintiff as a result of the defendant'srelatively short delay in answering, the existence of a potentially meritorious defense, and thepublic policy favoring the resolution of cases on the merits, the Supreme Court properly excusedthe defendant's delay in answering (seeGiha v Giannos Enters., Inc., 69 AD3d 564, 565 [2010]; Stuart v Kushner, 39 AD3d 535,536 [2007]; Harcztark v Drive Variety,Inc., 21 AD3d 876 [2005]).
To the extent the plaintiff argues that the Supreme Court should not have granted thedefendant leave to serve a late answer, we note that the order appealed from did not grant suchrelief. Mastro, J.P., Angiolillo, Balkin, Lott and Miller, JJ., concur.