Klughaupt v. Hi-Tower Contractors, Inc.

In an action to recover damages for personal injuries, the [546] plaintiff appeals from an order of the Supreme Court, Kings County (Miller, J.), dated November 17, 2008, which denied her motion for leave to enter a default judgment against the defendant Lynch Park, LLC, and granted that defendant’s cross motion to vacate its default in answering and for leave to serve a late answer. Ordered that the order is affirmed, with costs. The Supreme Court providently exercised its discretion in denying the plaintiffs motion for leave to enter a default judgment against the defendant Lynch Park, LLC (hereinafter Lynch Park), and in granting Lynch Park’s cross motion to vacate its default in answering and for leave to serve a late answer (see CPLR 5015). Considering the lack of any prejudice to the plaintiff as a result of the relatively short three-week delay in serving an answer, the existence of a potentially meritorious defense, and the public policy favoring the resolution of cases on the merits, the Supreme Court properly excused the de minimis delay in answering (see Schonfeld v Blue & White Food Prods. Corp., 29 AD3d 673 [2006]; Yonkers Rib House, Inc. v 1789 Cent. Park Corp., 19 AD3d 687 [2005]; Trimble v SAS Taxi Co. Inc., 8 AD3d 557 [2004]; see e.g. Perez v Linshar Realty Corp., 259 AD2d 532 [1999]; Swidler v World-Wide Volkswagen Corp., 85 AD2d 239 [1982]; cf. Leifer v Pilgreen Corp., 62 AD3d 759 [2009] [10-month delay in moving to vacate default in answering or appearing, with no meritorious defense, does not warrant vacatur of default]). Skelos, J.P., Florio, Balkin, Belen and Austin, JJ., concur.