| Jennings v Queens Tribune Publs., LLC |
| 2012 NY Slip Op 09032 [101 AD3d 1086] |
| December 26, 2012 |
| Appellate Division, Second Department |
| Allan Jennings, Appellant, v Queens Tribune Publications,LLC, et al., Respondents. |
—[*1] Stuart P. Besen, Garden City, N.Y., for respondents.
In an action to recover damages for defamation, the plaintiff appeals from an order of theSupreme Court, Queens County (Lane, J.), dated March 1, 2012, which granted that branch of thedefendants' motion which was for leave to reargue their opposition to his motion for leave toenter judgment against them on the issue of liability upon their failure to serve a timely answerand their cross motion pursuant to CPLR 3012 (d) to compel the plaintiff to accept their answerand, upon reargument, in effect, vacated a prior order of the same court dated November 2, 2011,granting the plaintiff's motion and denying their cross motion, and, thereupon, denied his motionand, in effect, granted their cross motion.
Ordered that the order dated March 1, 2012, is affirmed, with costs.
On or about October 30, 2009, an article was published in the defendant South East QueensPress about the plaintiff and certain real property in South Ozone Park owned by the plaintiff andleased to a tenant who was complaining about the living conditions. In October 2010, theplaintiff, pro se, commenced this action against the defendants to recover damages fordefamation. The defendants allegedly were served with the summons and complaint in February2011, but did not serve an answer until August 2011. One day after being served with the answer,the plaintiff moved for leave to enter judgment against the defendants on the issue of liabilityupon the defendants' failure to serve a timely answer. The defendants cross-moved pursuant toCPLR 3012 (d) to compel the plaintiff to accept their answer. In an order dated November 2,2011, the Supreme Court granted the plaintiff's motion and denied the defendants' cross motion.Thereafter, the defendants moved for leave to reargue and/or renew their cross motion and theiropposition to the plaintiff's motion. In an order dated March 1, 2012, the Supreme Court grantedthat branch of the defendants' motion which was for leave to reargue and, upon reargument, ineffect, vacated the order dated November 2, 2011, and, thereupon, denied the plaintiff's motionand, in effect, granted their cross motion.
The Supreme Court properly granted reargument, and, upon reargument, properly denied theplaintiff's motion for leave to enter judgment against the defendants on the issue of liability upontheir failure to serve a timely answer, and, in effect, properly granted the defendants' crossmotion pursuant to CPLR 3012 (d) to compel the plaintiff to accept their answer. The [*2]defendants demonstrated a reasonable excuse for serving anuntimely answer (see Weinstein vSchacht, 98 AD3d 1106, 1107 [2012]). In addition, the defendants' submission of theiranswer and an affidavit of merit, both verified by their attorney, sufficiently demonstrated apotentially meritorious defense (seeHarris v City of New York, 30 AD3d 461, 465 [2006]; Goldman v City of NewYork, 287 AD2d 482, 483-484 [2001]). Moreover, the plaintiff was not prejudiced by thedelay involved, the defendants' delay in answering was not willful, and public policy favors theresolution of cases on their merits (seeZeccola & Selinger, LLC v Horowitz, 88 AD3d 992, 993 [2011]; Daniels v Bovis Lend Lease, Inc., 12AD3d 342, 343 [2004]; Goldman v City of New York, 287 AD2d at 483).
The plaintiff's remaining contentions either are without merit or have been renderedacademic by our determination. Rivera, J.P., Dillon, Roman and Cohen, JJ., concur.