Schonfeld v. Blue & White Food Products Corp.

In an action, inter alia, for a judgment declaring that the plaintiff is the beneficial owner of 20 percent of the shares of the stock of the defendant corporation and to recover damages for breach of contract, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Rockland County (Nelson, J.), entered June 22, 2005, as denied its motion for leave to enter judgment upon the defendant’s default in answering and granted the defendant’s cross motion to compel acceptance of its answer. 674 Ordered that the order is affirmed insofar as appealed from, with costs. The Supreme Court providently exercised its discretion in denying the plaintiffs motion for leave to enter a default judgment against the defendant corporation and in granting the defendant’s cross motion to compel the plaintiff to accept its answer, thereby excusing the defendant’s delay in serving it (see CPLR 2004, 3012 [d]). Considering the lack of any prejudice to the plaintiff as a result of the relatively short 21/2-month delay, the existence of potentially meritorious defenses, and the public policy favoring the resolution of cases on the merits, we agree with the Supreme Court that, as an exercise of discretion, the defendant’s delay in answering was properly excused (see Yonkers Rib House, Inc. v 1789 Cent. Park Corp., 19 AD3d 687, 688 [2005]; Trimble v SAS Taxi Co. Inc., 8 AD3d 557 [2004]; Nasca v Town of Brookhaven, 4 AD3d 462 [2004]; Beecher v State Farm Mut. Auto. Ins. Co., 186 AD2d 1012, 1013 [1992]). Ritter, J.P., Mastro, Lunn and Covello, JJ., concur.