Defendant, Michael Levy, moves inter alia to restore the action to the Foreclosure Settlement Conference Part. Plaintiff cross-moves inter alia for an Order of Reference.

This is an action to foreclose a mortgage on the real property located at 175-07 Murdock Avenue, in the County of Queens, City and State of New York.

Plaintiff commenced the instant action on May 29, 2012 by the filing of the summons and complaint. Pursuant to CPLR 3408, a settlement conference in the foreclosure settlement conference part was ordered to be held on October 24, 2012. Defendant failed to appear on that date and the conference was marked off. Defendant contends he failed to appear for the conference due to his mistaken belief that the conference was to be held on October 25, 2012.

It is undisputed that defendant's nonappearance was unintentional and plaintiff concedes that a one-time error in calendaring a court date presents a valid excuse for a party's failure to appear. Under these circumstances, the case should be remanded to the settlement conference part and the parties should be given an opportunity to settle the action.

Defendant also seeks an extension of time to serve and file his answer to the Complaint pursuant to CPLR ��3012[d] which provides that a Court may, upon the application of a party, extend the time to appear or plead, or compel the acceptance of a pleading untimely served, upon such terms as may be just and upon a showing of reasonable excuse for the delay or default.

The court has discretion in determining whether an excuse is reasonable (See Durr v New York Community Hosp., 43 AD3d 388, 389 [2d Dept. 2007]; Matter of Hye-Young Chon v Country-Wide Ins. Co., 22 AD3d 849 [2d Dept. 2005]; Scarlett v McCarthy, 2 AD3d 623 [2d Dept. 2003]).

Defendant submits his affidavit wherein he states that after he received the Summons and Complaint, he contacted Homeward Residential, Inc., plaintiff's admitted loan servicer, and was informed that he did not need to respond to the summons and complaint. Considering the nature of the underlying case, which turns, in part, upon defendant's lack of sophistication (See, e.g., Swain v Janzen, 121 AD2d 378, 379 [2d Dept. 1986]), defendant's proffered excuse for his failure to timely answer the Complaint is reasonable (See DeStaso v. Bottigleri, 52 AD3d 453, 454-55 [2d Dept. 2008]; Scarlett v. McCarthy, 2 AD3d 623, 624 [2d Dept. 2003]).

Moreover, plaintiff has not been prejudiced by defendant's delay as plaintiff did not [*2]attempt to seek a default judgment until after receipt of defendant's motion and plaintiff has failed to allege any other basis for prejudice (See Merchants Ins. Group v. Hudson Val. Fire Protection Co., Inc., 72 AD3d 762, 764 [2d Dept. 2010]). In addition, public policy favors a determination of controversies on their merits (See Khanal v. Sheldon, 74 AD3d 894, 896 [2d Dept. 2010]). Contrary to plaintiff's contentions, defendant is not required to demonstrate a meritorious defense (See Pena-Vazquez v. Beharry, 82 AD3d 649 [1st Dept. 2011]).

Accordingly, defendant's motion is granted to the extent that defendant shall serve an answer on respondents no later than June 7, 2013.

It is further Ordered that the action be restored to the Foreclosure Settlement Conference Part and a new settlement conference be scheduled.

Plaintiff's cross-motion is denied without prejudice to renewal upon proof that the action has been released from the foreclosure settlement part following the conference ordered herein.

April 25, 2013 ____________________

J.S.C.