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Siwek v. Phillips

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


March 9, 2010

ROSEMARIE SIWEK, PLAINTIFF-RESPONDENT,
v.
LASCELL L. PHILLIPS, ET AL., DEFENDANTS-APPELLANTS.

Order, Supreme Court, Bronx County (Kenneth L. Thompson Jr., J.), entered February 3, 2009, which, to the extent appealed from as limited by the briefs, granted plaintiff's motion for a default judgment against defendant Ardsley and denied defendants' cross motion to compel plaintiff to accept their answer nunc pro tunc and to transfer the action to Westchester County, unanimously modified, on the law, the motion for a default judgment against Ardsley denied, the cross motion granted to the extent of compelling plaintiff to accept Ardsley's answer nunc pro tunc, and otherwise 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.

Tom, J.P., Friedman, Sweeny, Nardelli, Abdus-Salaam, JJ.

307042/08

In view of the strong public policy favoring resolution of cases on their merits, the court improvidently exercised its discretion in granting default judgment. Ardsley explained that its delay was due to failure to receive a copy of the summons and complaint within 30 days of service from the Secretary of State, after which it then provided the pleadings to its insurance carrier, which gave them to its counsel, who interposed an answer. This was a valid excuse for the delay (see Di Lorenzo, Inc. v Dutton Lbr. Co., 67 NY2d 138 [1986]). Furthermore, because the delay was brief (see Princeton Venture Research v Kaye, Scholer, Fierman, Hays & Handler, 256 AD2d 222 [1998]) and plaintiff alleged no prejudice resulting therefrom (see Cirillo v Macy's, Inc, 61 AD3d 538, 540 [2009]; Acker v Van Epps, 45 AD3d 1104 [2007]), a default judgment should not have been entered.

Although Ardsley made a timely demand for a change of venue from the Bronx, it did not timely move for such relief. A defendant "may move to change the place of trial within fifteen days after service of the demand," unless the plaintiff consents to the change of venue within five days of service of the demand (CPLR 511[b]). Ardsley's motion for a change of venue, made 35 days after service of the demand, must be rejected as untimely (see Singh v Becher, 249 AD2d 154 [1998]).

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

20100309

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