Russo v. U-Store Self Storage, LLC

12 A.D.3d 586, 784 N.Y.S.2d 370, 2004 N.Y. App. Div. LEXIS 14263

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 22, 2004
• Status: Published

Opinion

In an action, inter alia, for replevin, the plaintiffs appeal from an order of the Supreme Court, Richmond County (Vitaliano, J.), dated March 5, 2004, which denied their motion for leave to enter a judgment against the defendant upon its default in appearing or answering and granted the cross motion of the defendant pursuant to CPLR 3012 for an extension of time to serve an answer.

Ordered that the order is affirmed, without costs or disbursements.

The Supreme Court providently exercised its discretion in denying the plaintiffs’ motion for leave to enter a default judgment and in granting the defendant’s cross motion for an extension of time to serve an answer. The delay in interposing an answer, occasioned in part by the unresponsiveness of the plaintiffs’ counsel, was brief, the plaintiffs were not prejudiced thereby, and there is a potentially meritorious defense (see Nasca v Town of Brookhaven, 4 AD3d 462 [2004]; Kelly v National Wholesale Liquidators, 296 AD2d 568 [2002]; Khanna v Premium Food & Sports Enter., 279 AD2d 508, 509 [2001]; Trent v Bedford Stuyvesant Restoration Ctr., 277 AD2d 444, 445 [2000]; Stone v County of Nassau, 272 AD2d 392 [2000]). H. Miller, J.P., Crane, Spolzino and Fisher, JJ., concur.