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Smoke v. Windermere Owners, LLC

Supreme Court of New York, First Department

September 24, 2013

Gary Smoke, Plaintiff-Appellant,
v.
Windermere Owners, LLC, et al., Defendants-Respondents.

Marc Bogatin, New York, for appellant.

Cullen & Troia, P.C., New York (Kevin D. Cullen of counsel), for respondents.

Friedman, J.P., Freedman, Richter, Feinman, Gische, JJ.

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered July 20, 2012, which denied plaintiff's motion for a default judgment, unanimously affirmed, without costs.

By submitting the affirmation of their attorney, stating that defendants' verified answer was served two days late due to a calendaring error by their counsel, defendants have shown excusable default for the untimely service of that pleading (see CPLR 2005, 3012[d]; Barsel v Green, 264 A.D.2d 649 [1st Dept 1999]; Tutuianu v State of N.Y. Dept. of Social Servs., 242 A.D.2d 476 [1st Dept 1997]). In response, plaintiff has not shown, or even alleged, that he suffered any prejudice as a result of the two-day delay in receiving defendants' answer (see Tak Kuen Nagi v Sze Jing Chan, 159 A.D.2d 278 [1st Dept 1990]).

Although defendants were not required to show a meritorious defense, we note that they have made such a showing (see Guzetti v City of New York, 32 A.D.3d 234, 234 [1st Dept 2006]; Nason v Fisher, 309 A.D.2d 526 [1st Dept 2003]).


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