Opinion
Nos. 16231 M-2052 M-2182 Index No. 655639/19 Case No. 2020-04281
06-30-2022
MLS Real Estate Consultants, Inc., Plaintiff-Appellant, v. Sol Eisenberg Also Known as Chaim Eisenberg et al., Defendants-Respondents.
The Law Office of Jacob Zelmanovitz, Brooklyn (Jacob Zelmanovitz of counsel), for appellant. Levine & Associates, P.C., Scarsdale (Michael Levine of counsel), for respondents.
The Law Office of Jacob Zelmanovitz, Brooklyn (Jacob Zelmanovitz of counsel), for appellant.
Levine & Associates, P.C., Scarsdale (Michael Levine of counsel), for respondents.
Before: Kapnick, J.P., Friedman, Moulton, Shulman, Pitt, JJ.
Order, Supreme Court, New York County (O. Peter Sherwood, J.), entered October 28, 2020, which denied plaintiff's motion for a default judgment, unanimously affirmed, without costs.
Under the circumstances presented, Supreme Court properly denied plaintiff's motion for a default judgment. Defendants were technically in default when they failed to timely answer or move to dismiss after they filed their notice of appearance (see e.g. Hammond v Equinox Holdings LLC, 197 A.D.3d 1039, 1040 [1st Dept 2021]). Nonetheless, as Supreme Court noted in the order on appeal, in an earlier hearing on the motion, the court had sua sponte allowed plaintiff to file a late proof of service, which it had failed until then to file. At the same time, the court granted defendants a 30-day extension of time to respond to the complaint, with the time to begin running as of the date of the hearing, and, as the case docket makes clear, defendants timely responded to the complaint within that period. In any event, New York has a strong policy in favor of litigating matters on the merits (see Rosenblatt v New York City Tr. Auth., 122 A.D.3d 410, 411 [1st Dept 2014]).
We have considered plaintiff's remaining contentions and find them unavailing.
M-2052 - MLS Real Estate, Inc. v Sol Einsenberg
Motion to strike and for sanctions, denied.
M-2182 - MLS Real Estate, Inc. v Sol Einsenberg
Cross motion for sanctions, denied.