Veith Enterprises, Inc. v. Electrical Development & Construction, Inc.

292 A.D.2d 376, 738 N.Y.S.2d 592, 2002 N.Y. App. Div. LEXIS 2213

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 4, 2002
• Status: Published

Opinion

In an action to recover money due and owing for construction work and materials provided, the plaintiff appeals from so much of an order and judgment (one paper) of the Supreme Court, Dutchess County (Beisner, J.), dated August 15, 2001, as denied that branch of its motion which was for leave to enter a judgment against the defendant Pavarini Construction Co., Inc., upon its default in answering the complaint.

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

The Supreme Court providently exercised its discretion in denying that branch of the plaintiffs motion which was for leave to enter a judgment against the respondent Pavarini Construction Co., Inc., upon its failure to timely answer the complaint. The default in answering was short and not willful, and the plaintiff was not prejudiced thereby (see, CPLR 2004; 3012 [d]; Fidelity & Deposit Co. of Md. v Arthur Andersen & Co., 60 NY2d 693, 695; Leogrande v Glass, 106 AD2d 431, 432; Foglia v Fashion Floors, 79 AD2d 598; cf., A & J Concrete Corp. v Arker, 54 NY2d 870). Furthermore, the respondent set forth facts sufficiently establishing a meritorious defense (see, Anamdi v Anugo, 229 AD2d 408, 409). Santucci, J.P., Goldstein, Luciano, Schmidt and Crane, JJ., concur.