Lutfy & Lutfy, P.C., Garden City, NY (Frances T. Lutfy of counsel), for appellant.
Faust, Goetz, Schenker & Blee, LLP, New York, NY (Jeffrey M. Rubinstein and Todd Hellman of counsel), for respondent Bermuda Realty, LLC.
Steven B. Heller, Dix Hills, NY, for respondent Arthur Jurgrau, doing business as Nachman Electric, Inc., and Electrical Contractors, Inc.
JOHN M. LEVENTHAL, J.P., SHERI S. ROMAN, SANDRA L. SGROI, and HECTOR D. LaSALLE, JJ.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Genovesi, J.), dated June 12, 2015, which denied those branches of his motion which were pursuant to CPLR 3215 for leave to enter a default judgment against the defendants Bermuda Realty, LLC, and Arthur Jurgrau, doing business as Nachman Electric, Inc., and Electrical Contractors, Inc., upon their failure to appear or answer the amended complaint, and granted the cross motion of the defendant Bermuda Realty, LLC, pursuant to CPLR 3012(d) to compel him to accept its late answer to the amended complaint.
ORDERED that the order is affirmed, with one bill of costs.
While we affirm the order appealed from, we do so on a ground not relied upon by the Supreme Court. On a to determine that a viable cause of action exists against either Bermuda Realty, LLC, or Jurgrau (see Jacobsen v. S & F Serv. Ctr. Co., Inc., 131 A.D.3d at 452, 15 N.Y.S.3d 149 ). Thus, the court correctly denied those branches of the plaintiff's motion which were pursuant to CPLR 3215 for leave to enter a default judgment against Bermuda Realty, LLC, and Jurgrau.
Furthermore, in light of the lack of prejudice to the plaintiff resulting from the delay in serving the answer to the amended complaint, the existence of a potentially meritorious defense, and the preference for resolution of cases on the merits, the Supreme Court properly granted the cross motion of Bermuda Realty, LLC, to compel the plaintiff to accept its late answer to the amended complaint (see CPLR 2004, 3012[d] ; Spence v. Davis, 139 A.D.3d 703, 31 N.Y.S.3d 539 ; Alonso v. Lorimik Realty Corp., 131 A.D.3d 496, 14 N.Y.S.3d 713 ).
To the extent that the plaintiff raises issues concerning those branches of his motion which were for leave to enter a default judgment against the defendants 81E98th KH Gym, LLC, doing business as Retro Fitness of Brownsville, and East 98th Street, LLC, those branches of his motion were not decided by the Supreme Court in the order appealed from and, thus, remain pending and undecided (see Katz v. Katz, 68 A.D.2d 536, 418 N.Y.S.2d 99 ).