Opinion
15858 Index No. 650867/19 Case No. 2020-03802
05-03-2022
GORDON LAW FIRM, P.C., Plaintiff–Respondent, v. PREMIER DNA CORP., et al., Defendants, Jon Steinberg, Defendant–Appellant.
Siegel & Reiner, LLP, New York (Richard H. Del Valle of counsel), for appellant.
Siegel & Reiner, LLP, New York (Richard H. Del Valle of counsel), for appellant.
Renwick, J.P., Kapnick, Friedman, Rodriguez, Pitt, JJ.
Order, Supreme Court, New York County (Gerald Lebovits, J.), entered December 20, 2019, which granted plaintiff's motion for a default judgment and denied defendant Jon Steinberg's motion to compel plaintiff to accept a late answer, unanimously reversed, on the facts and in the exercise of discretion, without costs, the motion denied, and the cross motion granted.
Plaintiff satisfied the requirements of CPLR 3215(f) by submitting proof of the service of the summons and complaint and an affidavit setting forth the facts that constitute the causes of action asserted, defendant's default and the amounts due (see e.g. Gantt v. North Shore–LIJ Health Sys., 140 A.D.3d 418, 31 N.Y.S.3d 864 [1st Dept. 2016] ). Nevertheless, we find that, while defendant offered a questionable excuse for his delay in answering, other factors militate in favor of granting his motion to compel late acceptance of an answer (see 3012[d]; Cantave v. 170 W. 85 St. Hous. Dev. Fund Corp., 164 A.D.3d 1157, 81 N.Y.S.3d 901 [1st Dept. 2018] ). It does not appear from the record that defendant's delay was willful, there has been no showing of prejudice to plaintiff arising from the delay, and, under the circumstances, i.e., that the parties’ rights and liabilities under the agreement at issue are contested and there exist credibility issues, defendant has raised a potentially meritorious defense (see id. at 1157, 81 N.Y.S.3d 901 ; Emigrant Bank v. Rosabianca, 156 A.D.3d 468, 472, 67 N.Y.S.3d 175 [1st Dept. 2017] ).