Meyer v. Rose

160 A.D.2d 565

Opinion

— Judgment, Supreme Court, New York County (David B. Saxe, J.), entered December 18, 1989, which denied plaintiff’s motion for an order granting a default judgment with leave to reapply if defendant fails to serve a verified answer within 10 days, is unanimously affirmed, without costs.

Plaintiff and defendant are officers, directors, and shareholders of Sloan’s Supermarket. Pursuant to an agreement with Sloan’s Supermarket, plaintiff agreed to leave active management, and thereafter he was to receive cash remuneration. Plaintiff commenced this action when defendant terminated his remuneration.

The defendant moved to dismiss the complaint, which the court denied. Thereafter, the defendant served his verified . answer 13 days late. Plaintiff rejected the verified answer and made a motion for entry of a default judgment. The court denied plaintiff’s motion as indicated above.

We find that the trial court did not abuse its discretion in denying the motion. The delay in serving the answer was brief. While defendant’s opposition papers did not include an affidavit of merits, the verified answer can be considered in determining whether a meritorious defense exists. In addition, there was no showing that the plaintiff suffered any prejudice. Equally important is New York’s strong public policy in permitting parties to litigate on the merits. (Scott v Allstate Ins. Co., 124 AD2d 481.) Concur—Murphy, P. J., Rosenberger, Kassal and Smith, JJ.