Watts v. Garcia

222 A.D.3d 568, 201 N.Y.S.3d 394, 2023 NY Slip Op 06604

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 21, 2023
• Docket: Index No. 807064/22E Appeal No. 1294 Case No. 2023-02751
• Status: Published

Opinion

Watts v Garcia (2023 NY Slip Op 06604)

Watts v Garcia

2023 NY Slip Op 06604

Decided on December 21, 2023

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: December 21, 2023
Before: Manzanet-Daniels, J.P., González, Scarpulla, Mendez, Higgitt, JJ.

Index No. 807064/22E Appeal No. 1294 Case No. 2023-02751

[*1]Christopher Watts, Plaintiff-Appellant,

v

Eufemia Gonzalez Garcia, Defendant-Respondent, Juan Miguel Rosario Melo Also Known As Miguelina Melo et al., Defendants.

Christopher S. Cardillo, P.C., New York (Christopher S. Cardillo of counsel), for appellant.

Marjorie E. Bornes, Brooklyn, for respondent.

Order, Supreme Court, Bronx County (Ben R. Barbato, J.), entered on or about March 21, 2023, which denied plaintiff's motion for a default judgment against defendant Eufemia Gonzalez Garcia, unanimously affirmed, without costs.

The court providently exercised its discretion in deeming defendant Garcia's answer timely filed and denying plaintiff's motion for a default judgment against her as moot (see Morales v American United Transp., Inc., 214 AD3d 415 [1st Dept 2023]). Garcia's delay was unintentional, as she had already appeared in a separate action arising from the same motor vehicle accident (see Matter of Thomas Anthony Holdings LLC v Goodbody, 210 AD3d 547 [1st Dept 2022]). In addition, there is no indication that the delay caused any prejudice to plaintiff (see id.; see also HSBC Bank USA v Lugo, 127 AD3d 502, 503 [1st Dept 2015], appeal dismissed 33 NY3d 1039 [2019]).

Contrary to plaintiff's contentions, in the absence of an already existing default order or judgment, an affidavit of merit is not necessary when opposing a plaintiff's motion for a default judgment or in seeking to compel a plaintiff to accept the defendant's late answer (see M&E 73-75 LLC v 57 Fusion LLC, 121 AD3d 528, 529 [1st Dept 2014]). Thus, the fact that the answer was verified by Garcia's attorney does not render her opposition to the motion deficient as a matter of law.

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

ENTERED: December 21, 2023