Smoke v. Windermere Owners, LLC

109 A.D.3d 742, 971 N.Y.S.2d 698

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 24, 2013
• Status: Published

Opinion

— Order, Supreme Court, New York County (Milton A. Tingling, J), entered July 20, 2012, which denied plaintiffs motion for a default judgment, unanimously affirmed, without costs.

By submitting the affirmation of their attorney, stating that defendants’ verified answer was served two days late due to a calendaring error by their counsel, defendants have shown excusable default for the untimely service of that pleading (see CPLR 2005, 3012 [d]; Barsel v Green, 264 AD2d 649 [1st Dept 1999]; Tutuianu v State of N.Y. Dept, of Social Servs., 242 AD2d 476 [1st Dept 1997]). In response, plaintiff has not shown, or even alleged, that he suffered any prejudice as a result of the two-day delay in receiving defendants’ answer (see Tak Kuen Nagi v Sze Jing Chan, 159 AD2d 278 [1st Dept 1990]).

Although defendants were not required to show a meritorious defense, we note that they have made such a showing (see Guzetti v City of New York, 32 AD3d 234, 234 [1st Dept 2006]; Nason v Fisher, 309 AD2d 526 [1st Dept 2003]). Concur — Friedman, J.P, Freedman, Richter, Feinman and Gische, JJ.