Opinion
May 2, 1988
Appeal from the Supreme Court, Rockland County (Kelly, J.).
Ordered that the order is reversed insofar as appealed from, on the law and as a matter of discretion, with costs, the cross motion is denied, and the appellants' time to serve their answers is extended until 20 days after service upon them of a copy of this decision and order, with notice of entry.
The appellants were only nine days in default in answering in this case when they made a motion to dismiss the complaint under CPLR 3016 (b). Although the Supreme Court properly denied the motion as being untimely, it was an improvident exercise of discretion to have granted the plaintiff's cross motion for leave to enter a default judgment.
In view of the relatively short period of the delay, the absence of any claim of prejudice to the plaintiff, the existence of a possible meritorious defense, the absence of any willfulness on the appellants' part and the public policy in favor of resolving cases on the merits, the Supreme Court should have denied the cross motion and granted the appellants leave to file late answers (see, McNeill v LaSala, 115 A.D.2d 459). Eiber, J.P., Kooper, Sullivan and Balletta, JJ., concur.