Stone v. County of Nassau

272 A.D.2d 392, 707 N.Y.S.2d 370, 2000 N.Y. App. Div. LEXIS 5114

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 8, 2000
• Status: Published

Opinion

—In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Lockman, J.), dated August 24, 1999, which denied her motion for leave to enter a judgment against the defendant upon its failure to timely answer the complaint and deemed the defendant’s answer timely served nunc pro tunc.

Ordered that the order is affirmed, with costs.

The Supreme Court providently exercised its discretion in denying the plaintiff’s motion for leave to enter a judgment against the defendant upon its failure to timely answer the complaint. While the defendant’s delay in serving its answer was due to law office failure, the record indicates that the delay was short and not willful, and that the plaintiff was not prejudiced thereby (see, A & J Concrete Corp. v Arker, 54 NY2d 870; Matter of Long Is. Light. Co. v Assessor of Town of Brook-haven, 251 AD2d 332; Bungay v Joy Power Prods., 243 AD2d 527). Furthermore, the defendant set forth facts sufficiently establishing a meritorious defense (see, Concepcion v Talon Realty Corp., 258 AD2d 494; Anamdi v Anugo, 229 AD2d 408). Ritter, J. P., Sullivan, S. Miller, Luciano and H. Miller, JJ., concur.