Opinion
June 2, 1983
Appeal from an order of the County Court of Schenectady County (Stroebel, Jr., J.), entered December 7, 1982, which granted plaintiffs' motion for an extension of time in which to serve a reply to the counterclaim contained in defendants' answer. Defendants maintain that, pursuant to Barasch v. Micucci ( 49 N.Y.2d 594), County Court abused its discretion in granting plaintiffs' motion since the only excuse offered for their failure to timely serve their reply falls into the category of law office failure. Where, as here, however, the defaulting party moves for an extension of time pursuant to CPLR 2004 before the opposing party moves for relief based upon the default, the court enjoys a broader range of discretion than it does where the defaulting party fails to make the motion for an extension prior to the opposing party's motion ( A J Concrete Corp. v. Arker, 54 N.Y.2d 870; Wrye v. Ciba-Geigy Corp., 92 A.D.2d 341). Since there is nothing in the record to indicate that plaintiffs' delay was willful or lengthy, or that it caused any prejudice to defendants, it was within the court's power to grant the extension ( A J Concrete Corp. v. Arker, supra, p 872). In support of their motion for an extension, plaintiffs submitted an affidavit of plaintiff John Cefala setting forth the merits of their defense to the counterclaim, which is sufficient. In view of plaintiffs' concession throughout this proceeding that their replay was not served timely and that the delay was due to law office failure, defendants' allegations that the reply was altered in an attempt to show timely service are irrelevant. We find no abuse of discretion in County Court's decision to grant plaintiffs' motion and, accordingly, its order should be affirmed. Order affirmed, with costs. Kane, J.P., Main, Casey, Mikoll and Yesawich, Jr., JJ., concur.