Schwartz v. Reisman

Herschel Kulefsky, New York, N.Y. (Ephrem J. Wertenteil of counsel), for appellant. Gannon, Rosenfarb, Balletti & Drossman, New York, N.Y. (Lisa L. Gokhulsingh of counsel), for respondent.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Sweeney, J.), dated July 16, 2012, which denied the plaintiff's motion pursuant to CPLR 3215 for leave to enter a default judgment against the defendant and granted the defendant's cross motion pursuant to CPLR 3012(d) for leave to serve a late answer and to compel the plaintiff to accept service of that answer.

ORDERED that the order is affirmed, with costs.

Inasmuch as the defendant demonstrated a reasonable excuse for his default and a potentially meritorious defense to the action, the Supreme Court providently exercised its discretion in denying the plaintiff's motion pursuant to CPLR 3215 for leave to enter a default judgment against the defendant and in granting the defendant's cross motion pursuant to CPLR 3012(d) for leave to serve a late answer and to compel the plaintiff to accept service of that answer ( see Fried v. Jacob Holding, Inc., 110 A.D.3d 56, 60–62, 970 N.Y.S.2d 260; Kolonkowski v. Daily News, L.P., 94 A.D.3d 704, 705–706, 941 N.Y.S.2d 663; Harcztark v. Drive Variety, 21 A.D.3d 876, 800 N.Y.S.2d 613).

SKELOS, J.P., DICKERSON, LOTT and AUSTIN, JJ., concur.