Yea Soon Chung v. Mid Queens LP

139 A.D.3d 490, 29 N.Y.S.3d 805

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 12, 2016
• Docket: 1131 153135/14
• Status: Published

Opinion

Order, Supreme Court, New York County (Ellen M. Coin, J.), entered December 18, 2014, which denied plaintiffs’ motion for entry of a default judgment against defendant, and granted defendant’s cross motion for an order compelling plaintiffs to accept the answer, unanimously affirmed, without costs.

The motion court’s denial of plaintiff’s motion for entry of a default judgment was a provident exercise of discretion. Defendant’s excuse for its delay in answering, based on law office failure, while “not particularly compelling,” was sufficient to show good cause for the delay (see Marine v Montefiore Health Sys., Inc., 129 AD3d 428, 429 [1st Dept 2015]). Further, defendant provided an affidavit of its property manager which, although somewhat perfunctory, at this stage in the proceedings was sufficient to set forth a potentially meritorious defense of lack of notice of any defect in the stairs involved in the accident (see M&E 73-75 LLC v 57 Fusion LLC, 121 AD3d 528 [1st Dept 2014]; Jones v 414 Equities LLC, 57 AD3d 65, 81 [1st Dept 2008]). Absent any showing of prejudice to plaintiff, the State’s policy of resolving such disputes on the merits warranted denial of the motion and grant of defendant’s cross motion (New Media Holding Co. LLC v Kagalovsky, 97 AD3d 463, 465 [1st Dept 2012]).

Concur — Tom, J.P., Sweeny, Andrias, Manzanet-Daniels and Webber, JJ.