Opinion
14438 Index No. 34052/19E Case No. 2021-01998
10-21-2021
Carlos VELASQUEZ, Plaintiff–Appellant, v. The NEW YORK CITY TRANSIT AUTHORITY/MTA, Defendant–Respondent.
The Law Offices of Brad A. Kauffman, PLLC, New York (Brad A. Kauffman of counsel), for appellant. Anna J. Ervolina, Brooklyn (Timothy J. O'Shaughnessy of counsel), for respondent.
The Law Offices of Brad A. Kauffman, PLLC, New York (Brad A. Kauffman of counsel), for appellant.
Anna J. Ervolina, Brooklyn (Timothy J. O'Shaughnessy of counsel), for respondent.
Acosta, P.J., Manzanet–Daniels, Kern, Oing, Kennedy, JJ.
Order, Supreme Court, Bronx County (Mitchell J. Danziger. J.), entered on or about March 30, 2021, which denied plaintiff's motion for a default judgment against defendant, and granted defendant's cross motion for an order deeming its answer to be timely filed nunc pro tunc, conditioned upon defendant's payment of $3,500 to plaintiff's attorney within 30 days after service of a copy of the order, unanimously affirmed, without costs. Defendant satisfied the requirements of CPLR 3012(d), which authorizes an extension of time to appear and plead "upon such terms as may be just, and upon a showing of reasonable excuse for delay or default." Here, delay in filing an answer was occasioned by law office failure, which constitutes "good cause" for the delay (see Lamar v. City of New York, 68 A.D.3d 449, 888 N.Y.S.2d 883 [1st Dept. 2009] ). Notably, defendant showed an intent to defend when it sought to extend its time to answer by stipulation. Plaintiff has not shown that he would be prejudiced (see Spira v. New York City Tr. Auth., 49 A.D.3d 478, 854 N.Y.S.2d 134 [1st Dept. 2008] ), and our determination comports with New York's strong policy in favor of litigating matters on the merits (see Rosenblatt v. New York City Tr. Auth., 122 A.D.3d 410, 411, 997 N.Y.S.2d 126 [1st Dept. 2014] ).
The motion court's conditioning the grant of defendant's motion upon payment to plaintiff's attorney of $3,500 was a provident exercise of discretion in light of the litigation necessitated and costs incurred by plaintiff.
Motion by plaintiff Carlos Velasquez for a stay of all discovery and proceedings, denied.