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Lamar v. City of New York

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


December 3, 2009

MICHAEL E. LAMAR,
PLAINTIFF-APPELLANT,
v.
THE CITY OF NEW YORK, DEFENDANT-RESPONDENT, "JOHN" SMALLS, ETC., ET AL., DEFENDANTS.

Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered August 6, 2008, which denied plaintiff's motion for a default judgment against the City of New York and granted the City's cross motion for an order deeming its answer to be timely served nunc pro tunc, unanimously affirmed, without costs.

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.

Saxe, J.P., Friedman, Acosta, Renwick, Abdus-Salaam, JJ.

14622/07

While the City's generalized assertion of law office failure as the excuse for its delay is not particularly compelling, it constitutes "good cause" for the delay (see Spira v New York City Tr. Auth., 49 AD3d 478 [2008]). No prejudice to plaintiff has been shown (see Cirillo v Macy's, Inc., 61 AD3d 538, 540 [2009]), and New York's public policy strongly favors litigating matters on the merits (see Silverio v City of New York, 266 AD2d 129 [1999]). An affidavit of merit is not required where no default order or judgment has been entered (see Cirillo, supra).

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

20091203

© 1992-2009 VersusLaw Inc.



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