| Gonzalez v Seejattan |
| 2014 NY Slip Op 08602 [123 AD3d 762] |
| December 10, 2014 |
| Appellate Division, Second Department |
[*1]
| Dennis F. Gonzalez, Appellant, v HarrikissoonSeejattan, Respondent. |
Linda T. Ziatz, P.C., Forest Hills, N.Y., for appellant.
Nancy L. Isserlis, Long Island City, N.Y. (Lawrence R. Miles of counsel),for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from anorder of the Supreme Court, Queens County (Strauss, J.), entered June 16, 2014, whichdenied his motion pursuant to CPLR 3215 for leave to enter judgment on the issue ofliability against the defendant upon his failure to appear or answer the complaint and foran inquest on the issue of damages, and granted the defendant's cross motion pursuant toCPLR 2004 and 3012 (d) to vacate the default and to compel the plaintiff to accept hislate answer.
Ordered that the order is affirmed, with costs.
Under the circumstances of this case, the Supreme Court providently exercised itsdiscretion in denying the plaintiff's motion, inter alia, for leave to enter judgment againstthe defendant upon his failure to appear or answer the complaint, and granting thedefendant's cross motion pursuant to CPLR 2004 and 3012 (d) to vacate his default andcompel the plaintiff to accept his late answer. In light of the lack of any prejudice to theplaintiff resulting from the defendant's short two-month delay in appearing or answeringthe complaint, the lack of willfulness on the part of the defendant, the existence of apotentially meritorious defense, and the public policy favoring the resolution of cases onthe merits, the defendant's default was properly excused (see Hosten v Oladapo, 52AD3d 658 [2008]; Stuart vKushner, 39 AD3d 535, 536 [2007]; Schonfeld v Blue & White Food Prods. Corp., 29 AD3d673, 674 [2006]). Skelos, J.P., Leventhal, Hinds-Radix, Duffy and LaSalle, JJ.,concur.