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Ferlito v. County of Suffolk

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK


January 29, 2008

JOSEPH FERLITO AND ANGELO FERLITO,
v.
THE COUNTY OF SUFFOLK, AND P.O. CHRISTIAN HUBERT; AND P.O. MICHAEL S. TURANSKY; AND STEVEN A. LEVY A/K/A STEVE LEVY DEFENDANTS.

The opinion of the court was delivered by: Hurley, Senior District Judge

ORDER

Plaintiffs, Joseph Ferlito and Angelo Ferlito (collectively "Plaintiffs"), commenced this asserting claims pursuant to 28 U.S.C. § 1983, as well as New York state law. By Memorandum and Order dated November 19, 2007, this Court granted in part and denied in part Defendants' motion to dismiss. Presently before this Court is Plaintiffs' Application for Entry of Default, filed on December 6, 2007. The application is denied.

Pursuant to Federal Rule of Civil Procedure 12(a)(4)(A)Defendants' answer was due to be served within ten days of this Court's decision of the motion to dismiss. Calculated pursuant to Rule 6 of the Federal Rules of Civil Procedure, the answer was due on December 4, 2007. It was actually filed on December 7, 2006, the day after the instant application was made. Because defaults are not favored and because the defendants have appeared and indicated a desire to contest the action and the failure to file the answer on or before December 4, 2007 was due to inadvertence, the Court exercises its discretion and denies the application for a default. See generally Wright and Miller, 10A Federal Practice and Procedure § 2682 at 18.

SO ORDERED.

Denis R. Hurley Senior District Judge

20080129

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