CPLR § 3215; CPLR § 3012; CPLR § 308

CPLR § 3215 Default judgment

CPLR § 3012 Service of pleadings and demand for complaint

(d) Extension of time to appear or plead

Zareef v Wong, 2009 NY Slip Op 02990 (App. Div., 2nd, 2009)

In an action to recover damages for personal injuries, the plaintiff
appeals from an order of the Supreme Court, Queens County (Taylor, J.),
dated August 4, 2008, which denied her motion pursuant to CPLR 3215 for
leave to enter judgment against the defendants upon their default in
appearing or answering, and granted the defendants' cross motion
pursuant to CPLR 3012(d) to compel the plaintiff to accept their
answer.

ORDERED that the order is affirmed, with costs.

The plaintiff served the defendants pursuant to CPLR 308(4) by
affixing copies of the summonses and complaints to the address of the
defendants' "actual place of business, dwelling place, or usual place
of abode" on November 12, 2007, and by mailing copies to the same
address on November 13, 2007. The proofs of service were filed on
December 20, 2007, well beyond the 20-day filing period required by
CPLR 308(4). In opposition to the plaintiff's motion pursuant to CPLR
3215 for leave to enter judgment against the defendants upon their
default in appearing or answering, the defendants served an answer on
March 4, 2008, and cross-moved to compel the plaintiff to accept their
answer. The Supreme Court denied the plaintiff's motion and granted the
defendants' cross motion.

While the failure to file a timely proof of service is a
curable procedural irregularity, here, the plaintiff did not obtain an
order permitting a late filing of proof of service (see Bank of New [*2]York v Schwab, 97 AD2d 450). Accordingly, the late filings were nullities and the defendants' time to answer never began to run (see Bank of New York v Schwab, 97 AD2d 450; Marazita v Nelbach, 91
AD2d 604). Since the defendants never defaulted, the plaintiff's motion
pursuant to CPLR 3215 for leave to enter judgment against them was
properly denied (see Hausknecht v Ackerman, 242 AD2d 604, 606; Paracha v County of Nassau, 228 AD2d 422; Rosato v Ricciardi, 174
AD2d 937). Moreover, the defendants' cross motion pursuant to CPLR
3012(d) to compel the plaintiff to accept their answer was properly
granted.

  The bold is mine.