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Moriano v. Provident New York Bancorp

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


March 9, 2010

PATRICIA MORIANO, ETC., RESPONDENT,
v.
PROVIDENT NEW YORK BANCORP, APPELLANT.

In an action to recover damages for breach of a lease, the defendant appeals from an order of the Supreme Court, Orange County (Slobod, J.), dated September 8, 2009, which, in effect, denied its motion, inter alia, to compel the plaintiff to accept its late answer.

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.

REINALDO E. RIVERA, J.P., ANITA R. FLORIO, THOMAS A. DICKERSON ARIEL E. BELEN and SHERI S. ROMAN, JJ.

(Index No. 3159/09)

DECISION & ORDER

ORDERED that the order is affirmed, with costs.

"A defendant who has failed to timely appear or answer the complaint must provide a reasonable excuse for the default and demonstrate a meritorious defense to the action, when opposing a motion for leave to enter judgment upon its failure to appear or answer and moving to extend the time to answer or to compel the acceptance of an untimely answer" (Lipp v Port Auth. of N.Y. & N.J., 34 AD3d 649, 649; see Juseinoski v Board of Educ. of City of N.Y., 15 AD3d 353, 356). Here, the Supreme Court providently exercised its discretion in denying the defendant's motion, inter alia, to compel the plaintiff to accept its late answer, since it failed to demonstrate the existence of a meritorious defense to the action (see Baldwin v Mateogarcia, 57 AD3d 594, 595; Cortlandt Healthcare, LLC v Gantt, 54 AD3d 799, 800; Lipp v Port Auth. of N.Y. & N.J., 34 AD3d at 649-650; Juseinoski v Board of Educ. of City of N.Y., 15 AD3d at 357-358).

RIVERA, J.P., FLORIO, DICKERSON, BELEN and ROMAN, JJ., concur.

20100309

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