Rodriguez v. L&S Sons, Inc.

295 A.D.2d 492, 744 N.Y.S.2d 341, 2002 N.Y. App. Div. LEXIS 6455

Opinion

—In an action to recover damages for personal injuries, the plaintiff appeals from so much of an order of the Supreme Court, Queens County (Schmidt, J.), dated September 4, 2001, as granted those branches of the motion of the defendants L&S Sons, Inc., and Lloyd Newman, which were to vacate the default of the defendant L&S Sons, Inc., in answering the complaint and to compel the plaintiff to accept its untimely answer, and denied his cross motion for leave to enter a default judgment against the defendant L&S Sons, Inc.

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

The Supreme Court providently exercised its discretion in granting those branches of the defendants’ motion which were to vacate the default of the defendant L&S Sons, Inc., in answering the complaint and to compel the plaintiff to accept its untimely answer. The default in answering was short and not willful, and the plaintiff was not prejudiced thereby (see CPLR 2004, 2005, 3012 [d]; Fidelity & Deposit Co. of Md. v Andersen & Co., 60 NY2d 693, 695; Santos v City of New York, 269 AD2d 585; Ribowsky v Allstate Ins. Co., 251 AD2d 484; Scagnelli v Pavone, 178 AD2d 590; Leogrande v Glass, 106 AD2d 431, 432; Lindo v Evans, 98 AD2d 765; Foglia v Fashion Floors, 79 AD2d 598). Furthermore, the defendant L&S Sons, Inc., demonstrated a meritorious defense (see Anamdi v Anugo, 229 AD2d 408, 409). Santucci, J.P., Smith, Krausman, H. Miller and Adams, JJ., concur.