Gordon Law Firm, P.C. v. Premier DNA Corp.

205 A.D.3d 416, 165 N.Y.S.3d 691, 2022 NY Slip Op 02948

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 3, 2022
• Docket: Index No. 650867/19 Appeal No. 15858 Case No. 2020-03802
• Status: Published

Opinion

Gordon Law Firm, P.C. v Premier DNA Corp. (2022 NY Slip Op 02948)

Gordon Law Firm, P.C. v Premier DNA Corp.

2022 NY Slip Op 02948

Decided on May 03, 2022

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: May 03, 2022
Before: Renwick, J.P., Kapnick, Friedman, Rodriguez, Pitt, JJ.

Index No. 650867/19 Appeal No. 15858 Case No. 2020-03802

[*1]Gordon Law Firm, P.C., Plaintiff-Respondent,

v

Premier DNA Corp., et al., Defendants, Jon Steinberg, Defendant-Appellant.

Siegel & Reiner, LLP, New York (Richard H. Del Valle of counsel), for appellant.

Order, Supreme Court, New York County (Gerald Lebovits, J.), entered December 20, 2019, which granted plaintiff's motion for a default judgment and denied defendant Jon Steinberg's motion to compel plaintiff to accept a late answer, unanimously reversed, on the facts and in the exercise of discretion, without costs, the motion denied, and the cross motion granted.

Plaintiff satisfied the requirements of CPLR 3215(f) by submitting proof of the service of the summons and complaint and an affidavit setting forth the facts that constitute the causes of action asserted, defendant's default and the amounts due (see e.g. Gantt v North Shore-LIJ Health Sys., 140 AD3d 418 [1st Dept 2016]).

Nevertheless, we find that, while defendant offered a questionable excuse for his delay in answering, other factors militate in favor of granting his motion to compel late acceptance of an answer (see 3012[d]; Cantave v 170 W. 85 St. Hous. Dev. Fund Corp., 164 AD3d 1157 [1st Dept 2018]). It does not appear from the record that defendant's delay was willful, there has been no showing of prejudice to plaintiff arising from the delay, and, under the circumstances, i.e., that the parties' rights and liabilities under the agreement at issue are contested and there exist credibility issues, defendant has raised a potentially meritorious defense (see id. at 1157; Emigrant Bank v Rosabianca, 156 AD3d 468, 472 [1st Dept 2017]). THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: May 3, 2022