Opinion
May 1, 1986
Appeal from the Supreme Court, Albany County (Viscardi, J.).
It was within Special Term's discretion to grant plaintiff's application for an extension of time to serve a reply where the delay of 65 days was neither willful nor lengthy, defendants did not show that they were prejudiced by the delay, and plaintiff established an excuse for its tardiness and supplied the court with an affidavit of merits setting out a meritorious defense, i.e., that the counterclaim was legally insufficient under the parties' agreements (see, General Acc. Group v Scott, 96 A.D.2d 759, 760, appeal dismissed 60 N.Y.2d 651). Contrary to defendants' assertions, plaintiff's law office failure to serve a reply while settlement discussions were taking place constituted a reasonable excuse for the delay (see, Knapek v MV Southwest Cape, 110 A.D.2d 928, 930; Brown Cow Farm v Volvo of Am. Corp., 102 A.D.2d 916, lv dismissed 63 N.Y.2d 770; Boss v Avoxe Corp., 97 A.D.2d 601, 602), and the affidavit of plaintiff's attorney with the complaint and contract sued upon appended thereto was sufficient to set out the merits of the defense (see, Beagle v Parillo, 116 A.D.2d 856; Dick v Samaritan Hosp., 115 A.D.2d 917). Moreover, although the merits of the case may at times be an appropriate factor for the court's consideration, CPLR 3012 (d) does not require an affidavit of merit as a precondition to obtaining relief where, as here, the delay in pleading has been of reasonably short duration (see, Mufalli v Ford Motor Co., 105 A.D.2d 642, 644).
Order affirmed, with costs. Kane, J.P., Casey, Mikoll, Yesawich, Jr., and Levine, JJ., concur.