Guzetti v. City of New York

32 A.D.3d 234, 820 N.Y.S.2d 29

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 10, 2006
• Status: Published

Opinions

Order, Supreme Court, Bronx County (Alan J. Saks, J.), entered March 11, 2005, which denied plaintiffs motion for a default judgment against defendant Damm and to strike defendant City of New York’s answer, and granted defendants’ cross motion to compel acceptance of an amended answer nunc pro tunc, affirmed, without costs.

In this personal injury action against the City and its employee, a Correction Department captain, the motion court properly exercised its discretion in denying plaintiff’s motion for a default judgment against the employee. Although plaintiffs detailed and sworn notice of claim constituted sufficient proof of her cause of action for purposes of CPLR 3215 (f), defendants demonstrated a reasonable excuse for their delay (see Drawhorn v Iglesias, 254 AD2d 97 [1998]; Vines v Manhattan & Bronx Surface Tr. Operating Auth., 162 AD2d 229 [1990]). Defendants were not required to submit an affidavit of merit (see Nason v Fisher, 309 AD2d 526 [2003]). This State’s public policy favors determinations on the merits (see CPLR 3012 [d]; Silverio v City of New York, 266 AD2d 129 [1999]).

The IAS court also properly exercised its discretion in denying plaintiffs motion to strike the City’s answer, since plaintiff failed to establish that the City’s delay in submitting defendant Damm’s personnel records for an in camera review was willful or contumacious (see Frye v City of New York, 228 AD2d 182 [1996]; Dauria v City of New York, 127 AD2d 459 [1987]). We conclude that there has been substantial compliance by the City with the court-ordered discovery requirements.

To the extent that plaintiff argues that defendants’ cross motion and affirmation in opposition were untimely, we find that plaintiff was not prejudiced by defendants’ minimal delay (see Glasz v Glasz, 173 AD2d 937, 938 [1991]). The IAS court was well within its discretion to consider this cross motion where, as here, there is no evidence that plaintiff asked for an adjournment or otherwise sought an opportunity to submit a reply.

We have considered and rejected plaintiffs remaining arguments. Concur — Buckley, P.J., Tom and Nardelli, JJ.