Hirsch ex rel. Hirsch v. New York City Department of Education

Order, Supreme Court, New York County (Barbara Jaffe, J.), entered July 15, 2011, which denied plaintiffs’ motion for a default judgment and granted defendants’ cross motion to compel plaintiffs to accept their untimely answer and to dismiss the complaint as against defendant James Secreto, unanimously affirmed, without costs. The motion court properly exercised its discretion in granting the cross motion to compel plaintiff to accept service of the late answer (see CPLR 3012 [d]). The City’s delay in answering on behalf of the individual defendants was reasonable in that it was due to its investigation of its obligation to defend them (see Silverio v Cit of New York, 266 AD2d 129 [1st Dept 1999]; General Municipal Law § 50-k [2]). Moreover, there is no indication that plaintiffs were prejudiced by the short delay, and defendants were not required to set forth a meritorious defense because no default judgment had been entered (see Nason v Fisher, 309 AD2d 526 [1st Dept 2003]). Dismissal of the complaint as against defendant Secreto was proper, in light of plaintiffs’ failure to personally serve him (see CPLR 308 [2]). Concur—Andrias, J.E, Moskowitz, Freedman, Manzanet-Daniels and Feinman, JJ.