Opinion
2012-07-18
Vanessa ARIAS, appellant, v. FIRST PRESBYTERIAN CHURCH IN JAMAICA, defendant, Tick Tock Boutique, Inc., respondent.
Linda T. Ziatz, P.C., Forest Hills, N.Y., for appellant. Andrea G. Sawyers, Melville, N.Y. (Scott W. Driver of counsel), for respondent.
Linda T. Ziatz, P.C., Forest Hills, N.Y., for appellant. Andrea G. Sawyers, Melville, N.Y. (Scott W. Driver of counsel), for respondent.
MARK C. DILLON, J.P., RUTH C. BALKIN, ARIEL E. BELEN, and LEONARD B. AUSTIN, JJ.
In an action to recover damages for personal injuries, the plaintiff appeals from so much of an order of the Supreme Court, Queens County (Grays, J.), entered February 16, 2012, as denied that branch of her motion which was for leave to enter a judgment on the issue of liability against the defendant Tick Tock Boutique, Inc., upon its default in appearing or answering, and granted the cross motion of the defendant Tick Tock Boutique, Inc., in effect, to vacate its default in appearing or answering and pursuant to CPLR 3012(d) to compel the plaintiff to accept its late answer.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The Supreme Court providently exercised its discretion in denying that branch of the plaintiff's motion which was for leave to enter a judgment against the defendant Tick Tock Boutique, Inc. (hereinafter Tick Tock), upon its default in appearing or answering, and in granting Tick Tock's cross motion, in effect, to vacate its default and to compel the plaintiff to accept its late answer ( seeCPLR 2004, 3012[d] ). While Tick Tock promptly sought an extension of time to answer, the plaintiff ignored this request and instead moved for leave to enter a judgment against Tick Tock upon its failure to appear or answer. Thereafter, less than two months after its time to answer had expired, Tick Tock served an answer. Tick Tock acted diligently and never intended to abandon its defense or counterclaim ( see Covaci v. Whitestone Constr. Corp., 78 A.D.3d 1108, 911 N.Y.S.2d 652; Sitigus Foods Corp. v. 72–02 N. Blvd. Realty Corp., 293 A.D.2d 597, 740 N.Y.S.2d 219;Buderwitz v. Cunningham, 101 A.D.2d 821, 823, 475 N.Y.S.2d 300). Moreover, in light of the lack of prejudice to the plaintiff resulting from the short delay in serving an answer, the lack of willfulness on the part of Tick Tock, the existence of a potentially meritorious defense, and the public policy favoring the resolution of cases on the merits, that branch of the plaintiff's motion which was for leave to enter judgment on the issue of liability against Tick Tock was providently denied ( seeCPLR 2004; Klughaupt v. Hi–Tower Contrs., Inc., 64 A.D.3d 545, 546, 882 N.Y.S.2d 313;Finkelstein v. Sunshine, 47 A.D.3d 882, 852 N.Y.S.2d 168;Stuart v. Kushner, 39 A.D.3d 535, 536, 833 N.Y.S.2d 187;Schonfeld v. Blue & White Food Prods. Corp., 29 A.D.3d 673, 674, 814 N.Y.S.2d 711), and Tick Tock's cross motion, inter alia, to compel the plaintiff to accept its late answer was providently granted ( seeCPLR 3012[d] ).
The plaintiff's remaining contention is without merit.