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GARY SMOKE, plf-ap, v. WINDERMERE OWNERS, LLC defres

10571N. GARY SMOKE, plf-ap, v. WINDERMERE OWNERS, LLC defres — Marc Bogatin, New York, for ap — Cullen & Troia, P.C., New York (Kevin D. Cullen of counsel), for res — Order, Supreme Court, New York County (Milton A. Tingling, J.), entered July 20, 2012, which denied plaintiff's motion for a default judgment, unanimously affirmed, without costs.

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10571N. GARY SMOKE, plf-ap, v. WINDERMERE OWNERS, LLC defres — Marc Bogatin, New York, for ap — Cullen & Troia, P.C., New York (Kevin D. Cullen of counsel), for res — Order, Supreme Court, New York County (Milton A. Tingling, J.), entered July 20, 2012, which denied plaintiff’s motion for a default judgment, unanimously affirmed, without costs.

By submitting the affirmation of their attorney, stating that defendants’ verified answer was served two days late due to a calendaring error by their counsel, defendants have shown excusable default for the untimely service of that pleading (see CPLR 2005, 3012[d]; Barsel v. Green, 264 AD2d 649 [1st Dept 1999]; Tutuianu v. State of N.Y. Dept. of Social Servs., 242 AD2d 476 [1st Dept 1997]). In response, plaintiff has not shown, or even alleged, that he suffered any prejudice as a result of the two-day delay in receiving defendants’ answer (see Tak Kuen Nagi v. Sze Jing Chan, 159 AD2d 278 [1st Dept 1990]).

 
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