Arias v. First Presbyterian Church in Jamaica
| Decision Date | 18 July 2012 |
| Parties | Vanessa ARIAS, appellant, v. FIRST PRESBYTERIAN CHURCH IN JAMAICA, defendant, Tick Tock Boutique, Inc., respondent. |
| Court | New York Supreme Court — Appellate Division |
OPINION TEXT STARTS HERE
Linda T. Ziatz, P.C., Forest Hills, N.Y., for appellant.
Andrea G. Sawyers, Melville, N.Y. (Scott W. Driver of counsel), for respondent.
MARK C. DILLON, J.P., RUTH C. BALKIN, ARIEL E. BELEN, and LEONARD B. AUSTIN, JJ.
In an action to recover damages for personal injuries, the plaintiff appeals from so much of an order of the Supreme Court, Queens County (Grays, J.), entered February 16, 2012, as denied that branch of her motion which was for leave to enter a judgment on the issue of liability against the defendant Tick Tock Boutique, Inc., upon its default in appearing or answering, and granted the cross motion of the defendant Tick Tock Boutique, Inc., in effect, to vacate its default in appearing or answering and pursuant to CPLR 3012(d) to compel the plaintiff to accept its late answer.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The Supreme Court providently exercised its discretion in denying that branch of the plaintiff's motion which was for leave to enter a judgment against the defendant Tick Tock Boutique, Inc. (hereinafter Tick Tock), upon its default in appearing or answering, and in granting Tick Tock's cross motion, in effect, to vacate its default and to compel the plaintiff to accept its late answer ( seeCPLR 2004, 3012[d] ). While Tick Tock promptly sought an extension of time to answer, the plaintiff ignored this request and instead moved for leave to enter a judgment against Tick Tock upon its failure to appear or answer. Thereafter, less than two months after its time to answer had expired, Tick Tock served an answer. Tick Tock acted diligently and never intended to abandon its defense or counterclaim ( see Covaci v. Whitestone Constr. Corp., 78 A.D.3d 1108, 911 N.Y.S.2d 652; Sitigus Foods Corp. v. 72–02 N. Blvd. Realty Corp., 293 A.D.2d 597, 740 N.Y.S.2d 219;Buderwitz v. Cunningham, 101 A.D.2d 821, 823, 475 N.Y.S.2d 300). Moreover, in light of the lack of prejudice to the plaintiff resulting from the short delay in serving an answer, the lack of willfulness on the part of Tick Tock, the existence of a potentiallymeritorious defense, and the public policy favoring the resolution of cases on the merits, that branch of the plaintiff's motion...
To continue reading
Request your trial
-
Stewart Title Ins. Co. v. Bank of N.Y. Mellon, Formerly Known Y., for the Certificateholders Cwalt, Inc.
...31 N.Y.S.3d 539 ; Fried v. Jacob Holding, Inc., 110 A.D.3d at 60–61, 66, 970 N.Y.S.2d 260 ; Arias v. First Presbyt. Church in Jamaica, 97 A.D.3d 712, 712, 948 N.Y.S.2d 665 ; Stuart v. Kushner, 39 A.D.3d 535, 536, 833 N.Y.S.2d 187 ).The Supreme Court also properly granted that branch of BoNY......
-
Herzog v. Belizario
...Ctr. v. Hartford Cas. Ins. Co., 58 A.D.3d 832, 833, 872 N.Y.S.2d 196 [2d Dept.2009] ; see also Arias v. First Presbyt. Church in Jamaica, 97 A.D.3d 712, 712, 948 N.Y.S.2d 665 [2d Dept.2012] ).Thus, since plaintiffs have not been prejudiced by the short delay in the service of an answer, and......
-
Josovich v. Ceylan
...plaintiffs failed to show any prejudice from the short delay in Kelly's service of an answer (see Arias v. First Presbyt. Church in Jamaica,97 A.D.3d 712, 948 N.Y.S.2d 665; Westchester Med. Ctr. v. Hartford Cas. Ins. Co.,58 A.D.3d 832, 872 N.Y.S.2d 196). Accordingly, the Supreme Court provi......
-
Bank of N.Y. Mellon Corp. v. Alvarado
...N.Y.S.3d 684 ; Vellucci v. Home Depot U.S.A., Inc., 102 A.D.3d 767, 768, 957 N.Y.S.2d 874 ; Arias v. First Presbyt. Church in Jamaica, 97 A.D.3d 712, 712, 948 N.Y.S.2d 665 ). Furthermore, "[i]n light of the lack of prejudice to the plaintiff resulting from the [defendants'] short delay in s......