9317-9317A. YEHUDA KELLER plf-ap, v. MERCHANT CAPITAL PORTFOLIOS, LLC def, THE COMVEST GROUP defres — Poltorak PC, Brooklyn (Elie C. Poltorak of counsel), for ap — Akerman Senterfitt, LLP, New York (Scott M. Kessler of counsel), for res — Order, Supreme Court, New York County (Martin Shulman, J.), entered on or about January 26, 2011, which, to the extent appealed from as limited by the briefs, granted the motion of defendants The Comvest Group, Comvest Investment Partners, Cynergy Holdings LLC, Cynergy Data, LLC, and Cynergy Prosperity Plus, LLC, (collectively, Comvest) to dismiss the complaint as against them pursuant to CPLR 3211(a)(7), unanimously affirmed, without costs. Order, same court and Justice, entered May 22, 2012, which, to the extent appealed from as limited by the briefs, denied plaintiffs’ cross motion to enforce a conditional order, same court and Justice, entered April 22, 2011, inter alia, granting plaintiffs’ motion for sanctions pursuant to CPLR 3126 to the extent of ordering that if defendants Merchant Capital Portfolios, LLC and Merchant Processing Services Corp. (collectively, Merchant) failed to produce certain materials within 45 days of the issuance of the order, and plaintiffs moved on notice with an accompanying affirmation detailing Merchants default, then an order striking Merchant’s answer in its entirety would be entered, denied plaintiffs’ cross motion for a default judgment pursuant to CPLR 3215, and denied plaintiffs’ cross motion for sanctions pursuant to 22 NYCRR 130-1.1, unanimously modified, on the law, to enforce the conditional order and strike Merchant’s answer in its entirety, and otherwise affirmed, without costs.
Although Comvest did not serve its cross motion to dismiss within the time frame provided by CPLR 2215, such failure may be excused where, as here, plaintiffs have not shown prejudice resulting from the delay (see Walker v. Metro-North Commuter R.R., 11 AD3d 339, 340 [1st Dept 2004]), and plaintiffs had sufficient opportunity to respond to Comvest’s arguments (Andejo Corp. v. South St. Seaport Ltd. Partnership, 40 AD3d 407, 408 [1st Dept 2007]).
