Cousins v. Duane Street Associates

—Order of the Supreme Court, New York County (Diane Lebedeff, J.), entered on February 17, 1989, which, inter alia, denied plaintiff-appellant’s motion for entry of a default judgment, unanimously modified, on the law and the facts, and in the exercise of discretion, to the extent of compelling plaintiff-appellant to accept the answers of defendants-respondents upon the express condition that respondents pay to plaintiff $1,000 costs of the motion within 20 days after the date of the order herein, without costs and disbursements of the appeal. In the event that respondents shall fail to pay the costs as aforesaid, the order is reversed and the motion for entry of a default judgment is granted, with costs. Plaintiff-appellant commenced this action by service of a summons with notice naming six separate defendants. Four of the defendants entered a notice of appearance and served a demand for the complaint, which was then served upon them. The two defendants-respondents did nothing. The excuse proffered is that their insurer failed to submit the matter to their outside law firm before the time had elapsed. Two days after respondents’ time had elapsed respondents’ counsel unsuccessfully sought an extension of time to answer. Given the short period of delay and the absence of prejudice to plaintiff, and on the basis of the affidavit of merit submitted by respondent Deborah Dolan, respondents should be permitted to serve a late answer conditioned upon the payment of $1,000 costs. (See, Benson v Doherty Moving Corp., 99 AD2d 421, appeal dismissed 62 NY2d 804.) Concur—Murphy, P. J., Sullivan, Milonas, Kassal and Wallach, JJ.