Calcagno v. Magistrelli

284 A.D.2d 289, 725 N.Y.S.2d 882, 2001 N.Y. App. Div. LEXIS 5607

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 4, 2001
• Status: Published

Opinion

—In an action, inter alia, for specific performance of a contract to convey a partial ownership interest in real property to the plaintiff, the defendant appeals, as limited by her brief, from so much of an order of the Supreme Court, Kings County (R. E. Rivera, J.), entered August 2, 2000, as denied that branch of her motion which was for leave to serve a late answer.

Ordered that the order is reversed insofar as appealed from, as an exercise of discretion, with costs, and that branch of the defendant’s motion which was for leave to serve a late answer is granted; and it is further,

Ordered that the defendant’s time to serve a late answer is extended until 30 days after service upon her of a copy of this decision and order, with notice of entry.

Considering the absence of prejudice to the plaintiff, the meritorious nature of the defense, and the public policy in favor of resolving cases on the merits, the delay in serving the answer should have been excused (see, Kaiser v Delaney, 255 AD2d 362). Santucci, J. P., S. Miller, Luciano, Feuerstein and Adams, JJ., concur.