Eckna v. Kesselman

11 A.D.3d 507, 782 N.Y.S.2d 845, 2004 N.Y. App. Div. LEXIS 12029

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 12, 2004
• Status: Published

Opinion

In an action, inter alia, to recover damages for podiatric malpractice, etc., the defendant Parkway Hospital, Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (Grays, J.), dated September 24, 2003, as granted that branch of the plaintiffs’ motion which was for leave to enter a judgment against it upon its failure to appear or answer, and set the matter down for an inquest on damages.

Ordered that the order is reversed insofar as appealed from, on the law and as an exercise of discretion, with costs, and that branch of the plaintiffs’ motion which was for leave to enter a judgment against the appellant upon its failure to appear or answer is denied.

At the time of the plaintiffs’ motion, the appellant’s default in answering the complaint was brief, and there was no showing of any prejudice to the plaintiffs. Moreover, the affidavits submitted by the appellant suggest the existence of a meritorious defense. Therefore, under the circumstances, and in light of the public policy in favor of resolving cases on the merits, we find that the appellant’s delay in appearing and answering should have been excused, and the motion for leave to enter a judgment against the appellant upon its failure to appear and answer should have been denied (see Albano v Nus Holding Corp., 233 AD2d 280, 281 [1996]; see also Vita v Alstom Signaling, 308 AD2d 582, 583 [2003]; Polizzotto v Ultra Express Coach, 220 AD2d 568 [1995]). Krausman, J.P., Luciano, Mastro and Lifson, JJ., concur.