Opinion
2002-02654
Submitted June 12, 2002
July 30, 2002.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Garry, J.), dated March 5, 2002, which denied her motion for leave to enter a judgment against the defendant upon his failure to appear or answer, and granted the defendant's cross application to compel her to accept the answer.
Viders Wiesen, Carle Place, N.Y. (Kenneth B. Wiesen of counsel), for appellant.
Gilroy Downes Horowitz Goldstein, New York, N.Y. (Michael M. Horowitz of counsel), for respondent.
Before: FRED T. SANTUCCI, J.P., NANCY E. SMITH, GABRIEL M. KRAUSMAN, HOWARD MILLER, THOMAS A. ADAMS, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
In support of her motion for leave to enter a judgment against the defendant upon his failure to appear or answer, the plaintiff failed to proffer either an affidavit of the facts or a complaint verified by a party with personal knowledge of the facts (see CPLR 3215[f]; Parratta v. McAllister, 283 A.D.2d 625; Fiorino v. Yung Poon Yung, 281 A.D.2d 513; Grainger v. Wright, 274 A.D.2d 549; Finnegan v. Sheehan, 269 A.D.2d 491). Accordingly, the motion was properly denied. We have not considered the affidavit which was improperly submitted by the plaintiff in her reply papers on the motion (see Wright v. Cetek Technologies, 289 A.D.2d 569; Parratta v. McAllister, supra; Medugno v. City of Glen Cove, 279 A.D.2d 510).
Furthermore, the Supreme Court providently exercised its discretion in granting the defendant's cross application to compel the plaintiff to accept the answer, which was untimely served (see CPLR 2004; 3012[d]). Considering the absence of prejudice to the plaintiff, the meritorious nature of the defense, and the public policy in favor of resolving cases on the merits, we agree that the delay in serving the answer should be excused (see Calcagno v. Magistrelli, 284 A.D.2d 289; Kaiser v. Delaney, 255 A.D.2d 362; Van Man Adhesives Corp. v. City of New York, 236 A.D.2d 465).
The plaintiff's remaining contentions are improperly raised for the first time in her reply brief (see Berkey v. Emma, 291 A.D.2d 517; Morgan v. New York City Hous. Auth., 255 A.D.2d 565).
SANTUCCI, J.P., SMITH, KRAUSMAN, H. MILLER and ADAMS, JJ., concur.