Napolitano v. Heller Auto Leasing, Inc. , 150 A.D.2d 435 ( 1989 )

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Cohen, J.), dated September 27, 1988, which denied his motion for leave to enter a default judgment against the defendants G&R Trucking Co., Inc. and Donovan Young and granted the cross motion of those defendants to compel the plaintiff to accept their late answer.

Ordered that the order is reversed, on the law and as a matter of discretion, with costs, the motion is granted, and the cross motion is denied.

The respondents’ cross motion to compel the plaintiff to accept service of their late answer may be considered a motion, pursuant to CPLR 5015 (a) (1), to vacate their default in appearing (see, Shure v Village of Westhampton Beach, 121 AD2d 887; Mufalli v Ford Motor Co., 105 AD2d 642). That default was approximately one year in duration. Since they did not include an affidavit of merit with their cross motion, their cross motion is denied, and the plaintiffs motion is granted. Mangano, J. P., Thompson, Bracken and Eiber, JJ., concur.