DeMarco v. Wyndham International, Inc.

299 A.D.2d 209, 749 N.Y.S.2d 139, 2002 N.Y. App. Div. LEXIS 10785

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 14, 2002
• Status: Published

Opinion

Order, Supreme Court, New York County (Barbara Kapnick, J.), entered June 14, 2001, which granted defendant’s motion to compel plaintiff to accept its late answer and denied plaintiffs cross motion for a default judgment, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered April 3, 2001, unanimously dismissed, without costs, as superseded by the appeal from the June 14, 2001 order.

The motion court properly exercised its discretion in granting defendant’s motion to compel plaintiff to accept service of its late answer where the delay in serving the answer was relatively short and attributable to law office failure (see CPLR 3012 [d]; and see De Benedictis v Rahbar, 269 AD2d 134, 135). We note that, while defendant included an affidavit of merit in support of its motion, the affidavit was not essential to the relief sought, no default order or judgment having been obtained by plaintiff (see Terrones v Morera, 295 AD2d 254, 255). Concur — Williams, P.J., Nardelli, Tom and Lerner, JJ.