Gause v. 2405 Marion Corp.

Gause v 2405 Marion Corp. (2017 NY Slip Op 06998)

Gause v 2405 Marion Corp.

2017 NY Slip Op 06998

Decided on October 5, 2017

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 5, 2017
Friedman, J.P., Richter, Andrias, Kapnick, JJ.

550 303876/12

[*1]Verlene Gause, Plaintiff-Respondent,

v

2405 Marion Corp., Defendant-Appellant, Rosario Marino, Defendant.

Babchik & Young LLP, White Plains (Matthew J. Rosen of counsel), for appellant.

Eric H. Green, New York (Marc Gertler of counsel), for respondent.

Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered April 10, 2015, which, to the extent appealed from, granted plaintiff's motion for a default judgment as against defendant 2405 Marion Corp. (Marion), and denied Marion's cross motion to dismiss the action as abandoned pursuant to CPLR 3215(c), unanimously modified, on the law, to deny plaintiff's motion, and to grant Marion's cross motion solely to the extent of permitting Marion to file a late answer within 30 days from service of a copy of this order with notice of entry, and otherwise affirmed, without costs.

Supreme Court did not abuse its discretion in finding that

plaintiff had made a sufficient showing of law office failure to excuse its failure to move for a default judgment within one year (see Riccardi v Otero, 33 AD3d 571 [1st Dept 2006]). However, as the record reflects that Marion promptly responded to correspondence from plaintiff and sought to investigate the claim, and there being reason to believe that it did not receive the summons and complaint, we believe that Marion should be permitted to file a late answer.

The Decision and Order of this Court entered herein on March 22, 2016 is hereby recalled and vacated (see M-4942 decided simultaneously herewith).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 5, 2017

CLERK