Velasquez v. New York City Tr. Auth./MTA

2021 NY Slip Op 05803, 198 A.D.3d 555, 152 N.Y.S.3d 823

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 21, 2021
• Docket: Index No. 34052/19E Appeal No. 14438 Case No. 2021-01998
• Status: Published

Opinion

Velasquez v New York City Tr. Auth./MTA (2021 NY Slip Op 05803)

Velasquez v New York City Tr. Auth./MTA

2021 NY Slip Op 05803

Decided on October 21, 2021

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: October 21, 2021
Before: Acosta, P.J., Manzanet-Daniels, Kern, Oing, Kennedy, JJ.

Index No. 34052/19E Appeal No. 14438 Case No. 2021-01998

[*1]Carlos Velasquez, Plaintiff-Appellant,

v

The New York City Transit Authority/MTA, Defendant-Respondent.

The Law Offices of Brad A. Kauffman, PLLC, New York (Brad A. Kauffman of counsel), for appellant.

Anna J. Ervolina, Brooklyn (Timothy J. O'Shaughnessy of counsel), for respondent.

Order, Supreme Court, Bronx County (Mitchell J. Danziger. J.), entered on or about March 30, 2021, which denied plaintiff's motion for a default judgment against defendant, and granted defendant's cross motion for an order deeming its answer to be timely filed nunc pro tunc, conditioned upon defendant's payment of $3,500 to plaintiff's attorney within 30 days after service of a copy of the order, unanimously affirmed, without costs.

Defendant satisfied the requirements of CPLR 3012(d), which authorizes an extension of time to appear and plead "upon such terms as may be just, and upon a showing of reasonable excuse for delay or default." Here, delay in filing an answer was occasioned by law office failure, which constitutes "good cause" for the delay (see Lamar v City of New York, 68 AD3d 449 [1st Dept 2009]). Notably, defendant showed an intent to defend when it sought to extend its time to answer by stipulation. Plaintiff has not shown that he would be prejudiced (see Spira v New York City Tr. Auth., 49 AD3d 478 [1st Dept 2008]), and our determination comports with New York's strong policy in favor of litigating matters on the merits (see Rosenblatt v New York City Tr. Auth., 122 AD3d 410, 411 [1st Dept 2014).

The motion court's conditioning the grant of defendant's motion upon payment to plaintiff's attorney of $3,500 was a provident exercise of discretion in light of the litigation necessitated and costs incurred by plaintiff.

M-3153 - Carlos Velasquez v The New York City Transit

Authority/MTA

Motion by plaintiff Carlos Velasquez for a stay of all discovery and proceedings, denied.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: October 21, 2021