Opinion
No. 2010-01488.
January 11, 2011.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Spodek, J.), dated December 14, 2009, which denied his motion for leave to enter a default judgment on the issue of liability against the defendant The Avenue Cafe, Inc., and granted the cross motion of the defendant The Avenue Cafe, Inc., to compel him to accept late service of its answer.
Herschel Kulefsky, New York, N.Y. (Ephrem J. Wertenteil of counsel), for appellant.
Gannon, Lawrence Rosenfarb, New York, N.Y. (David A. Drossman of counsel), for respondent.
Before: Covello, J.P., Eng, Chambers and Hall, JJ.
Ordered that the order is affirmed, with costs.
The Supreme Court providently exercised its discretion in denying the plaintiffs motion for leave to enter a default judgment on the issue of liability against the defendant The Avenue Cafe, Inc. (hereinafter Avenue Cafe), and in granting Avenue Cafe's cross motion to compel the plaintiff to accept late service of its answer. Considering the lack of any prejudice to the plaintiff as a result of Avenue Cafe's relatively short delay in serving its answer, the existence of a potentially meritorious defense, and the public policy favoring the resolution of cases on the merits, the Supreme Court properly excused Avenue Cafe's delay in answering ( see Wiesel v Friends Exhaust Sys., Inc., 71 AD3d 1006; Falla v Keel Holdings, LLC, 50 AD3d 844, 845; Schmidt v City of New York, 50 AD3d 664; Stuart v Kushner, 39 AD3d 535; Schonfeld v Blue White Food Prods. Corp., 29 AD3d 673, 674).