Harley v. Hawkins

269 A.D.2d 496, 703 N.Y.S.2d 735, 2000 N.Y. App. Div. LEXIS 1934

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 22, 2000
• Status: Published

Opinion

—In an action to recover damages for legal malpractice, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (R. Goldberg, J.), entered October 7, 1998, as denied his motion for leave to enter a judgment upon the defendant’s failure to appear or answer, and granted that branch of the defendant’s motion which was to dismiss the complaint as time-barred.

Ordered that the order is affirmed insofar as appealed, with costs.

The Supreme Court providently exercised its discretion in denying the plaintiffs motion (see, Meyer v Rose, 160 AD2d 565). Following the commencement of this action, the defendant moved, inter alia, to dismiss the complaint as time-barred. Although this motion was made several days after the time to appear or answer had run (see, CPLR 320), it nevertheless clearly demonstrated that the plaintiffs claims of legal malpractice were untimely and meritless. In light of the brief, inadvertent delay, the absence of prejudice to the plaintiff, and the defendant’s meritorious defense, the Supreme Court correctly denied the plaintiffs motion for leave to enter a judgment upon the defendant’s failure to appear or answer (see, Lichtman v Sears, Roebuck & Co., 236 AD2d 373), and properly granted that branch of the defendant’s motion which was to dismiss the complaint as time-barred. Sullivan, J. P., S. Miller, Friedmann and Schmidt, JJ., concur.