Opinion
2263N, 2263NA
November 20, 2003.
Order, Supreme Court, Bronx County (Howard Silver, J.), entered February 14, 2003, which, in this personal injury action arising out of a fall in defendants' premises, vacated their default in answering, directed plaintiff to accept the answer, and struck her note of issue, unanimously affirmed, without costs. Appeal from decision, same court and Justice, dated October 7, 2002, unanimously dismissed, without costs, as taken from a nonappealable paper.
George T. Delaney, for plaintiff-appellant.
Dario DiLello, for defendants-respondents.
Before: Buckley, P.J., Rosenberger, Ellerin, Williams, Gonzalez, JJ.
No appeal lies from a decision (Brady v. Brady, 271 A.D.2d 563, 564). Plaintiff's nearly nine-month delay in submitting an order granting her judgment on default constitutes abandonment (Uniform Rules for Trial Courts [22 NYCRR] § 202.48[a], [b]; see Delta Funding Corp. v. Khader, 303 A.D.2d 710; cf. Funk v. Barry, 89 N.Y.2d 364), and the failure to serve defendants with the order with notice of entry obviates a finding of good cause for the delay (Brady, at 564). In support of their application to serve and file a late answer, defendants demonstrated a meritorious defense by tendering affidavits indicating that, in view of the time plaintiff fell (12:30 A.M.), they did not have a reasonable opportunity to discover the presence of a wet, slippery substance on the stairway and take appropriate measures to remedy the condition (Piacquadio v. Recine Realty Corp., 84 N.Y.2d 967, 969; Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837 — 838). While defendants' excuse for their delay in answering is not compelling, the record reflects a substitution of counsel and confusion as to whether defendants' untimely, unverified answer had been accepted. Law office failure is not a bar to relieving a party from the consequences of a default (CPLR 2005; see Mediavilla v. Gurman, 272 A.D.2d 146, 148; Pastore v. Golub Corp., 184 A.D.2d 827, 828), and defendants have therefore demonstrated their entitlement to relief (see Eugene Di Lorenzo, Inc. v. Dutton Lbr. Co., 67 N.Y.2d 138, 141; Aronson v. Hyatt Intl. Corp., 202 A.D.2d 153). Since plaintiff has not demonstrated any prejudice as a result of the delay, the grant of leave to file a late answer was a provident exercise of discretion (see Keles v. Kennedy, 238 A.D.2d 185; Mendoza v. Bi-County Paving, 227 A.D.2d 302).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.