Trent v. Bedford Stuyvesant Restoration Center

277 A.D.2d 444, 715 N.Y.S.2d 893, 2000 N.Y. App. Div. LEXIS 12351

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 27, 2000
• Status: Published

Opinion

—In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Pincus, J.), dated December 6, 1999, as denied his motion for leave to enter a judgment against the defendants upon their failure to timely answer the complaint.

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

Contrary to the plaintiffs contention, the Supreme Court providently exercised its discretion in denying his motion for leave to enter a default judgment against the respondents. Although the respondents’ delay in serving their answer was due to law office failure, the delay was brief and not willful, and there is no proof that the plaintiff was prejudiced thereby (see, Stone v County of Nassau, 272 AD2d 392; Lefkowitz v Kaye, Scholer, Fierman, Hays & Handler, 271 AD2d 576; Bungay v Joy Power Prods., 243 AD2d 527). Furthermore, there is a potentially meritorious defense (see, Stone v County of Nassau, supra; Lovario v Vuotto, 266 AD2d 191). O’Brien, J. P., Sullivan, Krausman, Goldstein and Schmidt, JJ., concur.