City of New York v. Healy/Yonkers/Atlas-Gest ( 1998 )

—Order, Supreme Court, New York County (Harold Tompkins, J.), entered September 25, 1997, denying plaintiff City of New York’s motion to extend the time to respond to defendant Davidson Pipe Supply Co., Inc.’s notice to admit, unanimously reversed, on the law, the facts and in the exercise of discretion, without costs or disbursements, the motion granted and plaintiff directed to serve a response within 20 days of service upon plaintiffs attorney of this Court’s order.

The motion to extend plaintiffs time to respond to the notice to admit was improvidently denied. The delay, due to oversight, in responding to the notice at the time plaintiffs counsel sought defendant Davidson’s consent to an extension was only a matter of days. Davidson did not and cannot show that it suffered any prejudice from so short a delay. In such circumstances, the motion should have been granted. Accordingly, we reverse and grant the relief sought.

We do not reach plaintiffs challenge to the propriety of the notice to admit since this claim, not having been raised before the IAS Court, is not properly before us. Concur — Sullivan, J. P., Williams, Tom and Andrias, JJ.