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Grammas v. Lockwood Associates, LLC

Supreme Court of New York, Second Department

June 26, 2013

Michael Grammas, et al., respondents,
v.
Lockwood Associates, LLC, appellant, et al., defendant. Index No. 16409/10

Lauterbach Garfinkel Damast & Hollander, LLP, Suffern, N.Y. (Howard Garfinkel of counsel), for appellant.

Leonard E. Lombardi, P.C., Scarsdale, N.Y., for respondents.

REINALDO E. RIVERA, J.P., L. PRISCILLA HALL, JEFFREY A. COHEN, ROBERT J. MILLER, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for fraud and breach of warranty, the defendant Lockwood Associates, LLC, appeals from an order of the Supreme Court, Westchester County (Murphy, J.), entered November 9, 2011, which granted the plaintiffs' motion pursuant to CPLR 3215 for leave to enter a default judgment against it and denied its cross motion pursuant to CPLR 3012(d) to compel the plaintiffs to accept service of its answer.

ORDERED that the order is reversed, on the facts and in the exercise of discretion, with costs, the plaintiffs' motion pursuant to CPLR 3215 for leave to enter a default judgment against the defendant Lockwood Associates, LLC, is denied, and the cross motion of the defendant Lockwood Associates, LLC, pursuant to CPLR 3012(d) to compel the plaintiffs to accept service of its answer is granted.

Under the circumstances of this case, the Supreme Court improvidently exercised its discretion in granting the plaintiffs' motion pursuant to CPLR 3215 for leave to enter a default judgment against the defendant Lockwood Associates, LLC (hereinafter Lockwood), and in denying Lockwood's cross motion pursuant to CPLR 3012(d) to compel the plaintiffs to accept service of its answer. Considering the lack of any prejudice to the plaintiffs as a result of Lockwood's relatively short delay in answering, the existence of a potentially meritorious defense, and the public policy favoring the resolution of cases on the merits, Lockwood's delay in answering should have been excused (see Feder v Eline Capital Corp., 80 A.D.3d 554, 554-555; Giha v Giannos Enters., Inc., 69 A.D.3d 564, 565).

RIVERA, J.P., HALL, COHEN and MILLER, JJ., concur.


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