Trimble v. SAS Taxi Co.

8 A.D.3d 557, 778 N.Y.S.2d 707, 2004 N.Y. App. Div. LEXIS 8698

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 21, 2004
• Status: Published

Opinion

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Galasso, J.), entered November 1, 2002, which denied his motion for leave to enter judgment against the defendants upon their failure to appear or answer, and directed him to accept their answer.

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 judgment against the defendants upon their failure to appear or answer, and directing him to accept their answer (see CPLR 2004, 3012 [d]). In view of the absence of any prejudice to the plaintiff, the lack of willfulness on the part of the defendants, and the public policy in favor of resolving cases on the merits, we agree with the Supreme Court that, as a matter of discretion, the defendants’ delay in answering was properly excused (see Goodman v New York City Health & Hosps. Corp., 2 AD3d 581 [2003]; Drake v Drake, 296 AD2d 566 [2002]; Veith Enters. v Electrical Dev. & Constr., 292 AD2d 376 [2002]; Calcagno v Magistrelli, 284 AD2d 289 [2001]). Florio, J.P., Krausman, Townes, Mastro and Fisher, JJ., concur.