Opinion
December 19, 1994
Appeal from the Supreme Court, Queens County (Di Tucci, J.).
Ordered that the order is affirmed, with costs.
The Supreme Court properly exercised its discretion by vacating the respondent's default and by granting him leave to serve an answer. The respondent clearly intended to defend the action on the merits, and at no time did the plaintiff enter a default judgment against him. Moreover, the respondent demonstrated a meritorious defense; he served his answer within a relatively short period of time after service of the complaint (less than three months); and the respondent demonstrated no prejudice as a result of the delay (see, Tugendhaft v Country Estates Assocs., 111 A.D.2d 846).
The Supreme Court also properly refused to preclude the respondent from asserting any affirmative defenses because neither the respondent nor his attorney signed the purported stipulation waiving such defenses (see, Klein v Mount Sinai Hosp., 61 N.Y.2d 865). Joy, J.P., Friedmann, Krausman and Florio, JJ., concur.