Walter v. Rockland Armor & Metal Corp.

140 A.D.2d 335, 528 N.Y.S.2d 82, 1988 N.Y. App. Div. LEXIS 4577

Opinion

The appellants were only five days in default in answering in this case when they made a motion to dismiss the complaint under CPLR 3016 (b). Although the Supreme Court properly denied the motion as being untimely, it was an improvident exercise of discretion to have granted the plaintiffs’ cross motion for leave to enter a default judgment.

In view of the relatively short period of the delay, the absence of any claim of prejudice to the plaintiff, the existence of a possible meritorious defense, the absence of any willfulness on the appellants’ part and the public policy in favor of resolving cases on the merits, the Supreme Court should have denied the cross motion and granted the appellants leave to file late answers (see, McNeill v Lasala, 115 AD2d 459). Eiber, J. P., Kooper, Sullivan and Balletta, JJ., concur.