Palermo v. Rodriguez

255 A.D.2d 567, 682 N.Y.S.2d 602, 1998 N.Y. App. Div. LEXIS 12867

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 30, 1998
• Status: Published

Opinion

—In an action, inter alia, to recover damages for intentional infliction of emotional distress, the plaintiff appeals from an order of the Supreme Court, Kangs County (Barasch, J.), dated October 9, 1997, which denied his motion for leave to enter judgment against the defendant for failing to answer or appear in this action.

Ordered that the order is reversed, as a matter of discretion, with costs, and the plaintiffs motion is granted.

The Supreme Court improvidently exercised its discretion in denying the plaintiffs motion for leave to enter a judgment against the defendant for failing to answer or appear in this action. In opposition to the motion, the defendant failed to proffer a reasonable excuse for the delay in answering the complaint and failed to demonstrate that he had a meritorious defense. Instead, the record indicates that the defendant served his answer only in response to the motion. Under these circumstances, based upon the complete failure of proof by the defendant, we find that the plaintiff was entitled to judgment against the defendant (see, CPLR 3012 [d]; Genen v McElroy, 213 AD2d 511). Mangano, P. J., Joy, Friedmann and Goldstein, JJ., concur.