From Casetext: Smarter Legal Research

Mulder v. Rockland Armor Metal Corp.

Appellate Division of the Supreme Court of New York, Second Department
May 2, 1988
140 A.D.2d 315 (N.Y. App. Div. 1988)

Opinion

May 2, 1988

Appeal from the Supreme Court, Rockland County (Kelly, J.).


Ordered that the order is reversed insofar as appealed from, on the law and as a matter of discretion, with costs, the cross motion is denied, and the appellants' time to serve their answers is extended until 20 days after service upon them of a copy of this decision and order, with notice of entry.

The appellants were only nine days in default in answering in this case when they made a motion to dismiss the complaint under CPLR 3016 (b). Although the Supreme Court properly denied the motion as being untimely, it was an improvident exercise of discretion to have granted the plaintiff's cross motion for leave to enter a default judgment.

In view of the relatively short period of the delay, the absence of any claim of prejudice to the plaintiff, the existence of a possible meritorious defense, the absence of any willfulness on the appellants' part and the public policy in favor of resolving cases on the merits, the Supreme Court should have denied the cross motion and granted the appellants leave to file late answers (see, McNeill v LaSala, 115 A.D.2d 459). Eiber, J.P., Kooper, Sullivan and Balletta, JJ., concur.


Summaries of

Mulder v. Rockland Armor Metal Corp.

Appellate Division of the Supreme Court of New York, Second Department
May 2, 1988
140 A.D.2d 315 (N.Y. App. Div. 1988)
Case details for

Mulder v. Rockland Armor Metal Corp.

Case Details

Full title:BLANCHE MULDER, Respondent, v. ROCKLAND ARMOR METAL CORP. et al.…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: May 2, 1988

Citations

140 A.D.2d 315 (N.Y. App. Div. 1988)

Citing Cases

Yi Jing Tan v. Liang

The Appellate Division, Second Department has held that where there is a lack of prejudice to the plaintiff,…

Xu v. JJW Enters., Inc.

In light of the public policy favoring the resolution of cases on their merits, the Supreme Court may compel…