Salzman & Salzman v. Gardiner

100 A.D.2d 846, 474 N.Y.S.2d 86, 1984 N.Y. App. Div. LEXIS 17954

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 2, 1984
• Status: Published

Opinion

—In an action to recover attorney’s fees for services rendered, plaintiff appeals from an order of the Supreme Court, Kings County (Scholnick, J.), dated July 13,1983, which granted a motion by defendant to extend the time in which to serve an answer and denied a cross motion by plaintiff for a default judgment. 11 Order affirmed, with costs. Defendant’s time to serve its answer is extended until 10 days after service upon him of a copy of the order to be made hereon, with notice of entry. 11 Prior to serving an answer, defendant moved to dismiss the complaint (CPLR 3211). It is uncontested that notice of entry of the order denying the motion to dismiss was served on defendant’s attorney by mail on January 19,1983. Thus, the 10-day period in which to serve an answer (CPLR 3211, subd [fl) was extended for an additional five days (CPLR 2103, subd [b], par 2) to February 3,1983. Defendant moved on February 1,1983 for an order extending the time in which to serve an answer (CPLR 2004). Because the motion was made prior to expiration of the prescribed period, defendant was not in default, and an affidavit of merit was not required (2A Weinstein-KornMiller, NY Civ Prac, par 2004.08). The granting of an extension of time pursuant to CPLR 2004 is within the discretion of the court (St. Louis v Willey, 92 AD2d 703; 2A Weinstein-Korn-Miller, NY Civ Prac, par 2004.02), and we cannot say that Special Term improvidently exercised its discretion by granting an extension in this case. Mollen, P. J., Gibbons, Bracken and Niehoff, JJ., Concur.