Practice point: The court denied that branch of plaintiff's motion which was
for leave to enter a judgment against defendant, upon its default in appearing
or answering, and in granting defendant’s cross-motion to vacate its default and to compel plaintiff to accept
its late answer. While defendant had promptly
sought an extension of time to answer, plaintiff ignored this request and
instead moved for leave to enter a judgment against defendant. Thereafter, less
than two months after its time to answer had expired, defendant served an
answer. The court found that defendant acted diligently and never intended to
abandon its defense or counterclaim.
Student note: In light of the lack of prejudice
to plaintiff resulting from the short delay in serving an answer, the lack of
willfulness on the defendant’s part, the existence of a
potentially meritorious defense, and the public policy favoring the resolution
of cases on the merits, that branch of plaintiff's motion which was for leave
to enter judgment on the issue of liability against defendant was providently
denied, pursuant to CPLR 2004. Defendant's cross motion to compel plaintiff to
accept its late answer was providently granted, pursuant to CPLR 3012 [d].
Case: Arias v. First Presbyt. Church in Jamaica,
NY Slip 05606 (2d Dept. 2012).
Tomorrow’s issue: Discovery, and medical
condition.
