May 12, 2016 - M&H Defeats Plaintiffs’ Attempt to Win Default Judgment Against Commercial Landowner

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In this personal injury action grounded in a theory of premises liability, M&H successfully defended the commercial landowner’s right to have the controversy decided on the merits.

Yea Soon Chung v Mid Queens LP

2016 NY Slip Op 03807

Decided on May 12, 2016

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 May 12, 2016

Tom, J.P., Sweeny, Andrias, Manzanet-Daniels, Webber, JJ.

1131 153135/14

Yea Soon Chung, et al., Plaintiffs-Appellants,

v

Mid Queens LP, Defendant-Respondent.

Sim & Record, LLP, Bayside (Sang J. Sim of counsel), for appellants.

Mischel & Horn, P.C., New York (Scott T. Horn of counsel), for respondent.

Order, Supreme Court, New York County (Ellen M. Coin, J.), entered December 18, 2014, which denied plaintiffs' motion for entry of a default judgment against defendant, and granted defendant's cross motion for an order compelling plaintiffs to accept the answer, unanimously affirmed, without costs.

The motion court's denial of plaintiff's motion for entry of a default judgment was a provident exercise of discretion. Defendant's excuse for its delay in answering, based on law office failure, while "not particularly compelling," was sufficient to show good cause for the delay (see Marine v Montefiore Health Sys., Inc., 129 AD3d 428, 429 [1st Dept 2015]). Further, defendant provided an affidavit of its property manager which, although somewhat perfunctory, at this stage in the proceedings was sufficient to set forth a potentially meritorious defense of lack of notice of any defect in the stairs involved in the accident (see M & E 73-75 LLC v 57 Fusion LLC, 121 AD3d 528 [1st Dept 2014]; Jones v 414 Equities LLC, 57 AD3d 65, 81 [1st Dept 2008]). Absent any showing of prejudice to plaintiff, the State's policy of resolving such disputes on the merits warranted denial of the motion and grant of defendant's cross motion (New Media Holding Co. LLC v Kagalovsky, 97 AD3d 463, 465 [1st Dept 2012]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 12, 2016

CLERK