Opinion
December 8, 1997
Appeal from the Supreme Court, Kings County (Kramer, J.).
Ordered that the appeal from the order denying the defendant's motion to vacate the plaintiff's note of issue and strike the case from the calendar is dismissed as abandoned and as academic since the plaintiff never filed a note of issue; and it is further,
Ordered that the order which, in effect, granted the plaintiff's cross motion for summary judgment is reversed, the cross motion is denied, the defendant's opposition papers are deemed an application for leave to vacate its default in timely answering the complaint, the application is granted, and the answer annexed to those opposition papers is deemed timely served; and it is further,
Ordered that the defendant is awarded one bill of costs.
The defendant demonstrated both a reasonable excuse for the delay in serving its answer and a meritorious defense. Moreover, the defendant's delay in serving its answer was relatively short, and the plaintiff has not demonstrated any prejudice as a result of this short delay. Thus, the Supreme Court erred in granting the plaintiff's cross motion and in failing to vacate the defendant's default in answering (see, Paradiso Assocs. v. Tamarin, 210 A.D.2d 386; Walter v. Rockland Armor Metal Corp., 140 A.D.2d 335; Wagenknecht v. Government Empls. Ins. Co., 97 A.D.2d 407).
The defendant's contention that it is entitled to dismissal of the complaint pursuant to CPLR 3215 (c) is without merit.
Bracken, J. P., Pizzuto, Altman, Krausman and Lerner, JJ., concur.