Opinion
2001-08074
Submitted January 16, 2002.
March 5, 2002.
In an action to recover money due and owing for construction work and materials provided, the plaintiff appeals from so much of an order and judgment (one paper) of the Supreme Court, Dutchess County (Beisner, J.), dated August 15, 2001, as denied that branch of its motion which was for leave to enter a judgment against the defendant Pavarini Construction Co., Inc., upon its default in answering the complaint.
Teahan Constantino, Poughkeepsie, N.Y. (Richard I. Cantor of counsel), for appellant.
Welby, Brady Greenblatt, LLP, White Plains, N.Y. (Thomas S. Tripodianos of counsel), for respondent.
Before: FRED T. SANTUCCI, J.P., GLORIA GOLDSTEIN, DANIEL F. LUCIANO, ROBERT W. SCHMIDT, STEPHEN G. CRANE, JJ.
ORDERED that the order and judgment is affirmed insofar as appealed from, with costs.
The Supreme Court providently exercised its discretion in denying that branch of the plaintiff's motion which was for leave to enter a judgment against the respondent Pavarini Construction Co., Inc., upon its failure to timely answer the complaint. The default in answering was short and not willful, and the plaintiff was not prejudiced thereby (see, CPLR 2004; 3012[d]; Fidelity and Deposit Co. of Md. v. Anderson Co., 60 N.Y.2d 693, 695; Leogrande v. Glass, 106 A.D.2d 431, 432; Foglia v. Fashion Floors, 79 A.D.2d 598; cf., A J Concrete Corp. v. Arker, 54 N.Y.2d 870). Furthermore, the respondent set forth facts sufficiently establishing a meritorious defense (see, Anamdi v. Anugo, 229 A.D.2d 408, 409).
SANTUCCI, J.P., GOLDSTEIN, LUCIANO, SCHMIDT and CRANE, JJ., concur.