Opinion
2013-04-11
Yitzchak M. HIRSCH, etc., et al., Plaintiffs–Appellants, v. NEW YORK CITY DEPARTMENT OF EDUCATION, et al., Defendants–Respondents.
Devorah Hirsch, appellant pro se. Michael A. Cardozo, Corporation Counsel, New York (Jane L. Gordon of counsel), for respondents.
Devorah Hirsch, appellant pro se. Michael A. Cardozo, Corporation Counsel, New York (Jane L. Gordon of counsel), for respondents.
*924Order, Supreme Court, New York County (Barbara Jaffe, J.), entered July 15, 2011, which denied plaintiffs' motion for a default judgment and granted defendants' cross motion to compel plaintiffs to accept their untimely answer and to dismiss the complaint as against defendant James Secreto, unanimously affirmed, without costs.
The motion court properly exercised its discretion in granting the cross motion to compel plaintiff to accept service of the late answer ( seeCPLR 3012[d] ). The City's delay in answering on behalf of the individual defendants was reasonable in that it was due to its investigation of its obligation to defend them ( see Silverio v. City of New York, 266 A.D.2d 129, 698 N.Y.S.2d 669 [1st Dept. 1999];General Municipal Law 50–k[2] ). Moreover, there is no indication that plaintiffs were prejudiced by the short delay, and defendants were not required to set forth a meritorious defense because no default judgment had been entered. ( see Nason v. Fisher, 309 A.D.2d 526, 765 N.Y.S.2d 32 [1st Dept. 2003] ).
Dismissal of the complaint as against defendant Secreto was proper, in light of plaintiffs' failure to personally serve him ( seeCPLR 308[2] ).