| Arias v First Presbyt. Church in Jamaica |
| 2012 NY Slip Op 05606 [97 AD3d 712] |
| July 18, 2012 |
| Appellate Division, Second Department |
| Vanessa Arias, Appellant, v First Presbyterian Church inJamaica, Defendant, and Tick Tock Boutique, Inc., Respondent. |
—[*1] Andrea G. Sawyers, Melville, N.Y. (Scott W. Driver of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from so much ofan order of the Supreme Court, Queens County (Grays, J.), entered February 16, 2012, as deniedthat branch of her motion which was for leave to enter a judgment on the issue of liability againstthe defendant Tick Tock Boutique, Inc., upon its default in appearing or answering, and grantedthe cross motion of the defendant Tick Tock Boutique, Inc., in effect, to vacate its default inappearing or answering and pursuant to CPLR 3012 (d) to compel the plaintiff to accept its lateanswer.
Ordered that the order is affirmed insofar as appealed from, with costs.
The Supreme Court providently exercised its discretion in denying that branch of theplaintiff's motion which was for leave to enter a judgment against the defendant Tick TockBoutique, Inc. (hereinafter Tick Tock), upon its default in appearing or answering, and ingranting Tick Tock's cross motion, in effect, to vacate its default and to compel the plaintiff toaccept its late answer (see CPLR 2004, 3012 [d]). While Tick Tock promptly sought anextension of time to answer, the plaintiff ignored this request and instead moved for leave toenter a judgment against Tick Tock upon its failure to appear or answer. Thereafter, less than twomonths after its time to answer had expired, Tick Tock served an answer. Tick Tock acteddiligently and never intended to abandon its defense or counterclaim (see Covaci v Whitestone Constr. Corp.,78 AD3d 1108 [2010]; Sitigus Foods Corp. v 72-02 N. Blvd. Realty Corp., 293AD2d 597 [2002]; Buderwitz v Cunningham, 101 AD2d 821, 823 [1984]). Moreover, inlight of the lack of prejudice to the plaintiff resulting from the short delay in serving an answer,the lack of willfulness on the part of Tick Tock, the existence of a potentially meritoriousdefense, and the public policy favoring the resolution of cases on the merits, that branch of theplaintiff's motion which was for leave to enter judgment on the issue of liability against TickTock was providently denied (see CPLR 2004; Klughaupt v Hi-Tower Contrs., Inc., 64 AD3d 545, 546 [2009]; Finkelstein v Sunshine, 47 AD3d882 [2008]; Stuart v Kushner,39 AD3d 535, 536 [2007]; Schonfeld v Blue & White Food Prods. Corp., 29 AD3d 673, 674[2006]), and Tick Tock's cross motion, inter alia, to compel the plaintiff to accept its late answerwas providently granted (see CPLR 3012 [d]).[*2]
The plaintiff's remaining contention is without merit.Dillon, J.P., Balkin, Belen and Austin, JJ., concur.