Opinion
05-30-2017
PEG BANDWIDTH, LLC, Plaintiff–Appellant, v. OPTICAL COMMUNICATIONS, Defendant–Respondent.
Eckert Seamans Cherin & Mellott, LLC, White Plains (Thomas M. Smith of counsel), for appellant. Law Offices of Victor A. Worms, New York (Victor A. Worms of counsel), for respondent.
Eckert Seamans Cherin & Mellott, LLC, White Plains (Thomas M. Smith of counsel), for appellant.
Law Offices of Victor A. Worms, New York (Victor A. Worms of counsel), for respondent.
ACOSTA, P.J., FRIEDMAN, ANDRIAS, WEBBER, GESMER, JJ.
Order, Supreme Court, New York County (Saliann Scarpulla, J.), entered November 4, 2015, which denied plaintiff's motion for summary judgment or a default judgment, and granted defendant's motion for an extension of time to answer, unanimously affirmed, without costs.
While plaintiff satisfied the requirements of CPLR 3215(f) for a default judgment, we decline to disturb the motion court's exercise of its broad discretion in finding that defendant's excuse for its delay in answering the complaint, i.e., law office failure, was reasonable (see e.g. Metropolitan Prop. & Cas. Ins. Co. v. Braun, 120 A.D.3d 1128, 992 N.Y.S.2d 420 [1st Dept.2014] ). In addition, the delay was relatively short, plaintiff failed to demonstrate prejudice, and there is a strong preference that matters be decided on the merits (see Gantt v. North Shore–LIJ Health Sys., 140 A.D.3d 418, 31 N.Y.S.3d 864 [1st Dept.2016] ).
On its motion for summary judgment, plaintiff failed to tender sufficient evidence to eliminate material issues of fact (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985] ). Issues of fact as to whether plaintiff properly terminated the agreement pursuant to its terms arise from the face of the agreement and the affidavit by plaintiff's vice chairman. Moreover, there are issues of fact as to which party breached the agreement, and there has been no discovery yet (see CPLR 3212[f] ).
We have considered plaintiff's remaining contentions and find them unavailing.