Opinion
12331N Index No. 651037/19 Case No. 2020-02045
11-10-2020
EPSTEIN BECKER & GREEN, P.C., Plaintiff–Appellant, v. SAMSON MANAGEMENT LLC et al., Defendants–Respondents.
Law Offices of Bernard D'Orazio & Associates, P.C., New York (Steven G. Yudin of counsel), for appellant. Clark Guldin, New York (Janesa Urbano of counsel), for respondents.
Law Offices of Bernard D'Orazio & Associates, P.C., New York (Steven G. Yudin of counsel), for appellant.
Clark Guldin, New York (Janesa Urbano of counsel), for respondents.
Friedman, J.P., Renwick, Oing, Mendez, JJ.
Order, Supreme Court, New York County (Louis L. Nock, J.), entered January 31, 2020, which denied plaintiff's motion for a default judgment, unanimously affirmed, with costs.
The court providently denied plaintiff's motion for a default judgment. Defendants offered a reasonable excuse for their six-month delay in filing an answer—failure to receive, or misplacement of the papers delivered to the New York State Secretary of State—which was sufficient under the facts of this case (see Lamar v. City of New York, 68 A.D.3d 449, 888 N.Y.S.2d 883 [1st Dept. 2009] ; Marine v. Montefiore Health Sys. Inc., 129 A.D.3d 428, 9 N.Y.S.3d 580 [1st Dept. 2015] ). Upon learning of this action when they received plaintiff's motion, defendants promptly retained counsel to oppose it and cross-moved to compel acceptance of their late answer. Significantly, there was no showing of willfulness, nor did plaintiff demonstrate any prejudice from the delay, and there is a strong public policy in favor of resolving cases on the merits (see id.; Chevalier v. 368 E. 148th St. Assoc., LLC, 80 A.D.3d 411, 413, 914 N.Y.S.2d 130 [1st Dept. 2011] ; Lamar, 68 A.D.3d at 449, 888 N.Y.S.2d 883 ).
Because no default judgment had yet been entered, defendants were not required to demonstrate a meritorious defense (see Marine, 129 A.D.3d at 429, 9 N.Y.S.3d 580 ; Lamar, 68 A.D.3d at 449, 888 N.Y.S.2d 883 ; Pichardo v. 969 Amsterdam Holdings LLC, 176 A.D.3d 571, 572, 108 N.Y.S.3d 845 [1st Dept. 2019] ).