Smoke v. Windermere Owners, LLC

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

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 ( seeCPLR 2005, 3012[d]; Barsel v. Green, 264 A.D.2d 649, 695 N.Y.S.2d 350 [1st Dept. 1999];Tutuianu v. State of N.Y. Dept. of Social Servs., 242 A.D.2d 476, 663 N.Y.S.2d 817 [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, 553 N.Y.S.2d 1 [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, 820 N.Y.S.2d 29 [1st Dept. 2006];Nason v. Fisher, 309 A.D.2d 526, 765 N.Y.S.2d 32 [1st Dept. 2003] ).

FRIEDMAN, J.P., FREEDMAN, RICHTER, FEINMAN, GISCHE, JJ., concur.