| Vellucci v Home Depot U.S.A., Inc. |
| 2013 NY Slip Op 00197 [102 AD3d 767] |
| January 16, 2013 |
| Appellate Division, Second Department |
| Thomas Vellucci, Appellant, v Home DepotU.S.A., Inc., Respondent. |
—[*1] Lewis Brisbois Bisgaard & Smith, LLP, New York, N.Y. (David M. Pollack,Nicholas P. Hurzeler, and Anthony Terranova of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals, as limitedby his brief, from so much of an order of the Supreme Court, Queens County (Hart, J.),dated May 25, 2012, as denied his motion for leave to enter a judgment on the issue ofliability against the defendant, upon its default in appearing or answering, and grantedthat branch of the defendant's cross motion which was, in effect, to vacate its default inappearing or answering and pursuant to CPLR 3012 (d) to compel the plaintiff to acceptits late answer.
Ordered that the order is affirmed insofar as appealed from, with costs.
The Supreme Court providently exercised its discretion in denying the plaintiff'smotion for leave to enter a judgment against the defendant, upon its default in appearingor answering, and in granting that branch of the defendant's cross motion which was, ineffect, to vacate its default and to compel the plaintiff to accept its late answer (seeCPLR 2004, 3012 [d]). While the defendant promptly sought an extension of time toanswer, the plaintiff ignored this request and instead moved for leave to enter a judgmentagainst the defendant upon its failure to appear or answer. Thereafter, less than onemonth after its time to answer had expired, the defendant served an answer. Thedefendant acted diligently and never intended to abandon its defense (see Arias v First Presbyt. Church inJamaica, 97 AD3d 712, 712 [2012]; Covaci v Whitestone Constr. Corp., 78 AD3d 1108, 1108[2010]; Sitigus Foods Corp. v 72-02 N. Blvd. Realty Corp., 293 AD2d 597, 597[2002]). In light of the lack of prejudice to the plaintiff resulting from the defendant'sshort delay in serving an answer, the lack of willfulness on the part of the defendant, theexistence of a potentially meritorious defense, and the public policy favoring theresolution of cases on the merits, the Supreme Court providently exercised its discretionin denying the plaintiff's motion for leave to enter judgment on the issue of liabilityagainst the defendant (see CPLR 2004; Zeccola & Selinger, LLC v Horowitz, 88 AD3d 992, 993[2011]; Feder v Eline CapitalCorp., 80 AD3d 554, 555 [2011]; Covaci v Whitestone Constr. Corp.,78 AD3d at 1108; Klughaupt vHi-Tower Contrs., Inc., 64 AD3d 545, 546 [2009]), and in granting that branchof the defendant's cross motion which was, inter alia, to compel the plaintiff to accept itslate answer (see CPLR 3012 [d]).[*2]
The defendant's remaining contention is withoutmerit. Rivera, J.P., Dickerson, Leventhal and Lott, JJ., concur.