Opinion
9110 Index 151486/16
04-30-2019
HERTZ VEHICLES, LLC, Plaintiff–Respondent, v. Darren T. MOLLO, D.C., et. al., Defendants–Appellants, Middle Village Diagnostic Imaging, P.C., et. al., Defendants.
The Rybak Firm, PLLC, Brooklyn (Maksim Leyvi of counsel), for appellants. Rubin, Fiorella & Friedman LLP, New York (David F. Boucher, Jr. of counsel), for respondent.
The Rybak Firm, PLLC, Brooklyn (Maksim Leyvi of counsel), for appellants.
Rubin, Fiorella & Friedman LLP, New York (David F. Boucher, Jr. of counsel), for respondent.
Gische, J.P., Webber, Kahn, Oing, JJ.
Order and judgment (one paper), Supreme Court, New York County (Ellen M. Coin, J.), entered September 6, 2017, which granted plaintiff's motion under CPLR 3215 for a default judgment, and denied defendants' cross motion for an extension of time to appear and to compel acceptance of their answer, unanimously reversed, on the law and the facts, without costs, the judgment vacated, plaintiff's motion denied, and defendants' cross motion granted.
Defendants satisfied the requirements of CPLR 3012(d), which authorizes an extension of time to appear or plead "upon such terms as may be just and upon a showing of reasonable excuse for delay or default." Here, the delay in filing an answer was occasioned by law office failure, which can constitute a reasonable excuse (see Matter of Rivera v. New York City Dept. of Sanitation, 142 A.D.3d 463, 464, 36 N.Y.S.3d 464 [1st Dept. 2016] ). Defendants' counsel explained that its failure to file its answer was due to an error in its office's case management system, which, upon the entry of a pre-answer motion to dismiss, marked the complaint answered. Notably, service of the pre-answer motion to dismiss revealed that defendants did not intend to abandon the action. Plaintiff does not argue that it has been prejudiced as a result of defendants' three month delay in submitting its answer ( Lamar v. City of New York, 68 A.D.3d 449, 888 N.Y.S.2d 883 [1st Dept. 2009] ), and our determination comports with New York's strong public policy in favor of litigating matters on the merits ( Gantt v. North Shore–LIJ Health Sys., 140 A.D.3d 418, 419, 31 N.Y.S.3d 864 [1st Dept. 2016] ).
We have considered Hertz's remaining contentions and find them to be unavailing.