Summary
In Artcorp Inc. v. Citirich Realty Corp., 140 A.D.3d 417, 30 N.Y.S.3d 872 (1st Dept 2016), we adopted the factors set forth in Guzetti v. City of New York, 32 A.D.3d 234, 238, 820 N.Y.S.2d 29 (1st Dept 2006) (id.) (McGuire, J., concurring) as those that "must... be considered and balanced" in determining whether a CPLR 3012(d) ruling constitutes an abuse of discretion.
Summary of this case from Emigrant Bank v. RosabiancaOpinion
06-02-2016
ARTCORP INC., Plaintiff–Appellant, v. CITIRICH REALTY CORP., Defendant–Respondent.
Moulinos & Associates LLC, New York (Peter Moulinos of counsel), for appellant. Todd Rothenberg, New Rochelle, for respondent.
Moulinos & Associates LLC, New York (Peter Moulinos of counsel), for appellant.
Todd Rothenberg, New Rochelle, for respondent.
Order, Supreme Court, New York County (Nancy M. Bannon, J.), entered October 7, 2015, which denied plaintiff's motion for a default judgment and granted defendant's cross motion to, among other things, compel plaintiff to accept its late answer, unanimously affirmed, with costs.
In this action seeking to prevent the termination of a commercial lease, the motion court providently exercised its discretion in denying plaintiff's motion, made more than a year after defendant's purported default, and in granting defendant's cross motion (see Guzetti v. City of New York, 32 A.D.3d 234, 238, 820 N.Y.S.2d 29 [1st Dept.2006] ). Defendant provided a reasonable excuse for the delay in answering the complaint (see CPLR 2005, 3012 [d]; Marine v. Montefiore Health Sys., Inc., 129 A.D.3d 428, 429, 9 N.Y.S.3d 580 [1st Dept.2015] ), and the record clearly demonstrates that defendant did not intend to abandon the case, since it appeared in opposition to plaintiff's motion for a Yellowstone injunction and in opposition to plaintiff's appeal from the order denying that motion (124 A.D.3d 545, 2 N.Y.S.3d 109 [1st Dept.2015] ). Plaintiff failed to show that it suffered any prejudice as a result of defendant's delay, and the strong public policy in favor of resolving cases on the merits warranted denial of plaintiff's motion (see Marine, 129 A.D.3d at 429, 9 N.Y.S.3d 580 ). Although it was not “essential[,]” defendant also showed a meritorious defense (Jones v. 414 Equities LLC, 57 A.D.3d 65, 81, 866 N.Y.S.2d 165 [1st Dept.2008] ; Guzetti, 32 A.D.3d at 238, 820 N.Y.S.2d 29 ).
ACOSTA, J.P., SAXE, GISCHE, WEBBER, KAHN, JJ., concur.