| Spence v Davis |
| 2016 NY Slip Op 03490 [139 AD3d 703] |
| May 4, 2016 |
| Appellate Division, Second Department |
[*1]
| Velma Spence et al., Appellants, v Ivan Davis,Also Known as George Davis, Respondent. |
Lazarowitz Law, P.C., Hempstead, NY (Harvey O. Lazarowitz of counsel), forappellants.
In an action, inter alia, for an accounting and the partition and sale of real property,the plaintiffs appeal, as limited by their brief, from so much of an order of the SupremeCourt, Kings County (Toussaint, J.), dated January 7, 2015, as denied their motion forleave to enter a default judgment against the defendant upon his failure to answer andgranted that branch of the defendant's cross motion which was pursuant to CPLR 3012(d) to compel them to accept his late answer.
Ordered that the order is affirmed insofar as appealed from, without costs ordisbursements.
The Supreme Court providently exercised its discretion in denying the plaintiffs'motion for leave to enter a default judgment against the defendant upon his failure toanswer and granting that branch of the defendant's cross motion which was pursuant toCPLR 3012 (d) to compel the plaintiffs to accept his late answer (see CPLR2004). Upon service of the plaintiffs' summons with notice, the defendant timelyappeared and demanded a complaint. After the plaintiffs served a complaint, thedefendant's attorney contacted the plaintiffs' attorney by telephone and sought consent toserve a late answer. The plaintiffs' attorney advised that he would discuss the issue withhis client and follow up with a response. The defendant's attorney did not receive aresponse before the plaintiffs moved for leave to enter a default judgment against thedefendant upon his failure to answer. Thereafter, about 45 days after his time to serve ananswer had expired, the defendant cross-moved, inter alia, to compel the plaintiffs toaccept his late answer. The defendant acted diligently and never intended to abandon hisdefense (see EHS QuickstopsCorp. v GRJH, Inc., 112 AD3d 577 [2013]; Vellucci v Home Depot U.S.A., Inc., 102 AD3d 767[2013]). Furthermore, in light of the lack of prejudice to the plaintiffs resulting from theshort delay in serving an answer, the lack of willfulness on the part of the defendant, theexistence of a potentially meritorious defense (see CPLR 105 [u]), and thepreference for resolution of cases on the merits, the plaintiffs' motion was properlydenied and that branch of the defendant's cross motion which was to compel theplaintiffs to accept his late answer was properly granted (see CPLR 2004, 3012[d]; Alonso v Lorimik RealtyCorp., 131 AD3d 496 [2015]; Gonzalez v Seejattan, 123 AD3d 762, 763 [2014]; Evans v Sandoval, 121 AD3d1037 [2014]; Arteaga vAdom Rental Transp., Inc., 121 AD3d 931, 932 [2014]). Leventhal, J.P.,Dickerson, Cohen and Hinds-Radix, JJ., concur.