Opinion
10-05-2017
Verlene GAUSE, Plaintiff–Respondent, v. 2405 MARION CORP., Defendant–Appellant, Rosario Marino, Defendant.
Babchik & Young LLP, White Plains (Matthew J. Rosen of counsel), for appellant. Eric H. Green, New York (Marc Gertler of counsel), for respondent.
Babchik & Young LLP, White Plains (Matthew J. Rosen of counsel), for appellant.
Eric H. Green, New York (Marc Gertler of counsel), for respondent.
Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered April 10, 2015, which, to the extent appealed from, granted plaintiff's motion for a default judgment as against defendant 2405 Marion Corp. (Marion), and denied Marion's cross motion to dismiss the action as abandoned pursuant to CPLR 3215(c), unanimously modified, on the law, to deny plaintiff's motion, and to grant Marion's cross motion solely to the extent of permitting Marion to file a late answer within 30 days from service of a copy of this order with notice of entry, and otherwise affirmed, without costs.
Supreme Court did not abuse its discretion in finding that plaintiff had made a sufficient showing of law office failure to excuse its failure to move for a default judgment within one year (see Riccardi v. Otero, 33 A.D.3d 571, 822 N.Y.S.2d 705 [1st Dept.2006] ). However, as the record reflects that Marion promptly responded to correspondence from plaintiff and sought to investigate the claim, and there being reason to believe that it did not receive the summons and complaint, we believe that Marion should be permitted to file a late answer.
The Decision and Order of this Court entered herein on March 22, 2016 is hereby recalled and vacated (see M–4942 decided simultaneously herewith).
FRIEDMAN, J.P., RICHTER, ANDRIAS, KAPNICK, JJ., concur.