Paradiso & Associates, Inc. v. Tamarin

210 A.D.2d 386, 622 N.Y.S.2d 57

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 19, 1994
• Status: Published

Opinion

—In an action, inter alia, to recover damages for conversion, fraud, and unjust enrichment, the plaintiff appeals from an order of the Supreme Court, Queens County (Di Tucci, J.), dated August 10, 1992, which granted the motion of the defendant Robert Paul Tamarin to vacate his default and for leave to serve an answer.

Ordered that the order is affirmed, with costs.

The Supreme Court properly exercised its discretion by vacating the respondent’s default and by granting him leave to serve an answer. The respondent clearly intended to defend the action on the merits, and at no time did the plaintiff enter a default judgment against him. Moreover, the respondent demonstrated a meritorious defense; he served his answer within a relatively short period of time after service of the complaint (less than three months); and the respondent demonstrated no prejudice as a result of the delay (see, Tugendhaft v Country Estates Assocs., 111 AD2d 846).

The Supreme Court also properly refused to preclude the respondent from asserting any affirmative defenses because neither the respondent nor his attorney signed the purported stipulation waiving such defenses (see, Klein v Mount Sinai Hosp., 61 NY2d 865). Joy, J. P., Friedmann, Krausman and Florio, JJ., concur.