Opinion
2009-801 Q C.
Decided February 19, 2010.
Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered March 27, 2009. The order denied plaintiff's motion seeking, in effect, to open her default in opposing defendant's prior motion to compel plaintiff to accept defendant's late answer and, thereupon, to deny defendant's motion.
ORDERED that the order is affirmed without costs.
PRESENT: RIOS, J.P., PESCE and STEINHARDT, JJ.
In this action to recover damages for personal injuries arising out of an automobile accident, defendant moved to compel plaintiff to accept defendant's late answer. According to the Civil Court's records, plaintiff submitted no opposition to defendant's motion, which was granted by the Civil Court. Plaintiff appealed that order, and this court dismissed the appeal on the ground that no appeal lies from an order entered on default ( Kelly v Morales , 19 Misc 3d 135 [A], 2008 NY Slip Op 50712[U] [App Term, 2d 11th Jud Dists 2008]).
Plaintiff subsequently moved in the Civil Court seeking, in effect, to open her default in opposing defendant's motion and, thereupon, to deny defendant's motion to compel acceptance of defendant's late answer, alleging that she had in fact submitted opposition to defendant's motion. The Civil Court denied plaintiff's motion, noting that, contrary to plaintiff's claim, the Civil Court file contained no opposition to defendant's motion, and its records showed that the motion was granted upon default. We affirm.
The determination of what constitutes a reasonable excuse sufficient to vacate a default lies within the sound discretion of the motion court ( see e.g. Matter of Gambardella v Ortov Light., 278 AD2d 494). The Civil Court did not improvidently exercise its discretion in finding that plaintiff had not offered a reasonable excuse, as plaintiff had offered no credible evidence to show that she had in fact submitted any opposition to defendant's motion. Plaintiff did not attach an affidavit of service of the opposition papers or any proof that the opposition had been filed with the court. Similarly, plaintiff did not submit an affidavit by someone with personal knowledge showing that anyone had appeared on behalf of plaintiff on the return date of defendant's motion.
Further, it is noted that the record indicates that defendant may have had a reasonable excuse for her delay in answering and a meritorious defense to this action. In addition, plaintiff has demonstrated no prejudice arising from the order directing her to accept defendant's late answer, and, indeed, the parties have apparently begun conducting discovery. Given the strong public policy favoring the resolution of cases on the merits, it would have been a proper exercise of discretion for the Civil Court to have granted defendant's motion to compel plaintiff to accept defendant's late answer, even if plaintiff's arguments in opposition had been considered ( see e.g. Lawrence v Palmer , 59 AD3d 394 ; Rottenberg v Preferred Prop. Mgt., Inc. , 22 AD3d 826).
Accordingly, the order denying plaintiff's motion is affirmed.
Rios, J.P., Pesce and Steinhardt, JJ., concur.