Peg Bandwidth, LLC v. Optical Communications — 150 A.D.3d 625

Majority

p. 625

Peg Bandwidth, LLC, Appellant, v Optical Communications, Respondent.

[56 NYS3d 66]

Order, Supreme Court, New York County (Saliann Scarpulla, J.), entered November 4, 2015, which denied plaintiffs motion for summary judgment or a default judgment, and granted defendant’s motion for an extension of time to answer, unanimously affirmed, without costs.

p. 626

While plaintiff satisfied the requirements of CPLR 3215 (f) for a default judgment, we decline to disturb the motion court’s exercise of its broad discretion in finding that defendant’s excuse for its delay in answering the complaint, i.e., law office failure, was reasonable (see e.g. Metropolitan Prop. & Cas. Ins. Co. v Braun, 120 AD3d 1128 [1st Dept 2014]). In addition, the delay was relatively short, plaintiff failed to demonstrate prejudice, and there is a strong preference that matters be decided on the merits (see Gantt v North Shore-LIJ Health Sys., 140 AD3d 418 [1st Dept 2016]).

On its motion for summary judgment, plaintiff failed to tender sufficient evidence to eliminate material issues of fact (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 , 853 [1985]). Issues of fact as to whether plaintiff properly terminated the agreement pursuant to its terms arise from the face of the agreement and the affidavit by plaintiff’s vice chairman. Moreover, there are issues of fact as to which party breached the agreement, and there has been no discovery yet (see CPLR 3212 [f]).

We have considered plaintiff’s remaining contentions and find them unavailing.

Concur—Acosta, P.J., Friedman, Andrias, Webber and Gesmer, JJ.

Cases cited

Gantt v. North Shore-LIJ Health System 140 AD3d 418 N.Y. App. Div. 2016-06-02 p. 626
Winegrad v. New York University Medical Center 64 NY2d 851 N.Y. 1985-02-12 at 853 p. 626