Opinion
2013-10-31
Nathaniel MYERS, Plaintiff–Appellant, v. The CITY OF NEW YORK, et al., Defendants–Respondents.
Sim & Record, LLP, Bayside (Sang J. Sim of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York (Jane L. Gordon of counsel), for respondents.
Sim & Record, LLP, Bayside (Sang J. Sim of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York (Jane L. Gordon of counsel), for respondents.
Order, Supreme Court, New York County (Barbara Jaffe, J.), entered May 29, 2012, which denied plaintiff's motion for a default judgment against the City of New York, and granted the City's cross motion for an order deeming its answer to be timely served nunc pro tunc, unanimously affirmed, without costs.
The City's delay in answering on behalf of the individual defendants was reasonable in that it was due to its investigation of its obligation to defend them ( see Hirsch v. New York City Dept. of Educ., 105 A.D.3d 522, 961 N.Y.S.2d 923 [1st Dept.2013]; Silverio v. City of New York, 266 A.D.2d 129, 698 N.Y.S.2d 669 [1st Dept.1999]; General Municipal Law 50–k[2] ). No prejudice to plaintiff has been shown ( see Cirillo v. Macy's, Inc., 61 A.D.3d 538, 540, 877 N.Y.S.2d 281 [2009] ), and New York's public policy strongly favors litigating matters on the merits ( see Silverio, 266 A.D.2d 129, 698 N.Y.S.2d 669). Thus, the motion court properly exercised its discretion in granting the cross motion to compel plaintiff to accept service of the late answer ( seeCPLR 3012[d]; Lamar v. City of New York, 68 A.D.3d 449, 888 N.Y.S.2d 883 [1st Dept.2009] ).