| EHS Quickstops Corp. v GRJH, Inc. |
| 2013 NY Slip Op 08046 [112 AD3d 577] |
| December 4, 2013 |
| Appellate Division, Second Department |
| EHS Quickstops Corp. et al., Appellants, v GRJH,Inc., Respondent. |
—[*1] Davis & Trotta, Millerton, N.Y. (Thomas P. Moore of counsel), forrespondent.
In an action to recover money had and received, the plaintiffs appeal (1) from anorder of the Supreme Court, Dutchess County (DiBella, J.), dated March 28, 2012, whichdenied their motion for leave to enter a judgment against the defendant upon thedefendant's failure to appear or answer, and granted the defendant's cross motionpursuant to CPLR 2004 and 3012 to compel them to accept a late answer, and (2), aslimited by their brief, from so much of an order of the same court dated December 31,2012, as, upon renewal and reargument, adhered to the original determination.
Ordered that the appeal from the order dated March 28, 2012, is dismissed, as thatorder was superseded by the order dated December 31, 2012, made upon renewal andreargument; and it is further,
Ordered that the order dated December 31, 2012, is affirmed insofar as appealedfrom; and it is further,
Ordered that one bill of costs is awarded to the defendant.
The Supreme Court, upon renewal and reargument, properly adhered to its originaldetermination denying the plaintiffs' motion for leave to enter a judgment against thedefendant upon the defendant's failure to appear or answer, and granting the defendant'scross motion to compel the plaintiffs to accept its late answer (see CPLR 2004,3012 [d]). Less than two months after the time to serve an answer had expired, thedefendant appeared, requested an extension of time from the plaintiffs to serve ananswer, and promptly moved to vacate its default after the answer was rejected (see Covaci v Whitestone Constr.Corp., 78 AD3d 1108 [2010]; Sitigus Foods Corp. v 72-02 N. Blvd. RealtyCorp., 293 AD2d 597 [2002]; Buderwitz v Cunningham, 101 AD2d 821,822 [1984]). Contrary to the plaintiffs' contention, there was no showing that thedefendant willfully or deliberately ignored notice of the summons and complaint, whichhad been sent by certified mail, return receipt requested, and was returned to theSecretary of State as "unclaimed." The defendant's president denied receiving notice ofthe certified mail, and there is no evidence that the defendant was on notice of the factthat there was an incomplete address on file with the Secretary of State (see Grosso v MTO Assoc. Ltd.Partnership, 12 AD3d 402, 403 [2004]; Samet v Bedford Flushing HoldingCorp., 299 AD2d 404, 405 [2002]; [*2]Santiagov Sansue Realty Corp., 243 AD2d 622, 623 [1997]). In light of the lack of prejudiceto the plaintiffs resulting from the short delay in serving an answer, the lack ofwillfulness on the part of the defendant, the existence of a potentially meritoriousdefense, and the public policy favoring the resolution of cases on the merits, uponrenewal and reargument, the court properly adhered to its original determination denyingthe plaintiffs' motion for leave to enter judgment against the defendant, and granting thedefendant's cross motion to compel the plaintiffs to accept its late answer (seeCPLR 2004, 3012 [d]; Arias vFirst Presbyt. Church in Jamaica, 97 AD3d 712 [2012]; Klughaupt v Hi-Tower Contrs.,Inc., 64 AD3d 545, 546 [2009]; Finkelstein v Sunshine, 47 AD3d 882 [2008]). Skelos, J.P.,Dickerson, Lott and Austin, JJ., concur.