| Darlind Constr., Inc. v Prism Solar Tech., Inc. |
| 2013 NY Slip Op 05792 [109 AD3d 783] |
| September 11, 2013 |
| Appellate Division, Second Department |
| Darlind Construction, Inc., Appellant, v PrismSolar Technologies, Inc., Respondent. |
—[*1] Phillips Lytle LLP, Albany, N.Y. (Kevin J. English and Marc H. Goldberg ofcounsel), for respondent.
In an action, inter alia, to recover damages for fraud, the plaintiff appeals from anorder of the Supreme Court, Dutchess County (Sproat, J.), dated April 23, 2012, whichdenied its motion for leave to enter a judgment on the issue of liability against thedefendant, upon the defendant's default in answering, and, in effect, granted thedefendant's cross application to compel the plaintiff to accept its late answer.
Ordered that on the Court's own motion, the notice of appeal from so much of theorder as, in effect, granted the defendant's cross application to compel the plaintiff toaccept its late answer is deemed to be an application for leave to appeal from that portionof the order, and leave to appeal from that portion of the order is granted (seeCPLR 5701 [c]); and it is further,
Ordered that the order is affirmed, with costs.
It is undisputed that the defendant timely appeared by making a motion pursuant toCPLR 3211 (a) (7) to dismiss the complaint. Thus, the defendant's time to answer wasextended until 10 days after the defendant was served with notice of entry of the orderdenying certain branches of that motion (see CPLR 3211 [f]). The defendantserved its answer three days after the time period within which to do so had expired(see CPLR 2103 [b] [2]).
Considering the minimal delay in answering, the absence of prejudice to the plaintiff,the lack of willfulness on the part of the defendant, and the public policy in favor ofresolving cases on the merits, the delay in serving the answer was properly excused(see CPLR 2004, 3012 [d]; Hosten v Oladapo, 52 AD3d 658 [2008]; Jolkovsky v Legeman, 32AD3d 418 [2006]; Bunch vDollar Budget, Inc., 12 AD3d 391 [2004]; Trimble v SAS Taxi Co. Inc., 8 AD3d 557, 558 [2004]).Skelos, J.P., Chambers, Sgroi and Hinds-Radix, JJ., concur.