Kelly v. National Wholesale Liquidators, Inc.

296 A.D.2d 568, 745 N.Y.S.2d 713, 2002 N.Y. App. Div. LEXIS 7749

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 29, 2002
• Status: Published

Opinion

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Nassau County (Dunne, J.), dated February 1, 2002, which, inter alia, denied their motion for leave to enter a judgment against the defendant Food Merchants RPG, Inc., upon its default in appearing or answering.

Ordered that the order is affirmed, with costs.

The Supreme Court providently exercised its discretion, inter alia, in denying the plaintiffs’ motion for leave to enter a judgment against the defendant Food Merchants RPG, Inc. (hereinafter Food Merchants), upon its default in appearing or answering. Although Food Merchants’ delay in serving its answer was due to law office failure, the delay was brief and the plaintiffs were not prejudiced thereby (see Khanna v Premium Food & Sports Enter., 279 AD2d 508; Trent v Bedford Stuyvesant Restoration Ctr., 277 AD2d 444; Stone v County of Nassau, 272 AD2d 392). Furthermore, there is a potentially meritorious defense (see Trent v Bedford Stuyvesant Restoration Ctr., supra; Stone v County of Nassau, supra). Altman, J.P., Krausman, Schmidt and Crane, JJ., concur.