Brownskin Shoe Corp. v. Ladies Mile, Inc.

15 A.D.3d 220, 792 N.Y.S.2d 864, 2005 N.Y. App. Div. LEXIS 1294

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 8, 2005
• Status: Published

Opinion

Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered July 28, 2004, which, to the extent appealed from as limited by the briefs, upon reargument, granted plaintiffs application for a Yellowstone injunction, and granted defendant’s cross motion for acceptance of its answer nunc pro tunc, unanimously affirmed, without costs.

Plaintiff adequately established its intention and ability to cure any default found by the court (see ERS Enters. v Empire Holdings, 286 AD2d 206 [2001]). Plaintiffs good faith was evidenced by defendant’s own witness, who attested that the tenant had removed most of the posters and signs at issue from the storefront windows. Defendant’s delay in answering the complaint was brief, with no prejudice to plaintiff. In light of defendant’s establishment of a meritorious defense, the court properly exercised its discretion in directing plaintiff to accept the answer nunc pro tunc (see e.g. Muney Design v Roscoe Mgt. Co., 97 AD2d 712 [1983]). Concur — Tom, J.P, Andrias, Friedman, Sullivan and Nardelli, JJ.