Photovision International, Inc. v. Thayer

235 A.D.2d 467, 652 N.Y.S.2d 1002, 1997 N.Y. App. Div. LEXIS 406

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 21, 1997
• Status: Published

Opinion

In an action, inter alia, to recover damages for conversion, the defendants appeal, as limited by their notice of appeal and brief, from so much of an order of the Supreme Court, Nassau County (Kohn, J.), as denied those branches of their motion which were for a default judgment on the first and second counterclaims set forth in their answer based upon the plaintiffs’ failure to reply.

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

Contrary to the defendants’ contention, the Supreme Court did not improvidently exercise its discretion in denying those branches of their motion which were for a default judgment on their first and second counterclaims, and in permitting the plaintiffs to serve a late reply to those counterclaims. Although the failure to serve a timely reply was apparently caused by law office failure, considering the existence of a possible meritorious defense to the counterclaims, the lack of willfulness on the part of the plaintiffs, and the strong public policy in favor of resolving claims on the merits, we agree, as a matter of discretion, that the plaintiffs’ delay in serving a reply was properly excused (see, Polizzotto v Ultra Express Coach 220 AD2d 568; Robles v Grace Episcopal Church, 192 AD2d 515; see also, Matter of Ajamian, 225 AD2d 992; Berman v Szpilzinger, 172 AD2d 304; Sunrise Assocs. v Pilot Realty Co., 170 AD2d 214). Miller, J. P., Santucci, Joy and Krausman, JJ., concur.