CPLR R. 5015 Relief from judgment or order
CPLR R. 2101 Form of papers
(f) Defects in form; waiver
CPLR § 3012 Service of pleadings and demand for complaint
(d) Extension of time to appear or plead
CPLR § 2005 Excusable delay or default
J.O. Dedicated Med., P.C. v State Farm Mut. Auto. Ins. Co., 2009 NY Slip Op 51089(U) (App. Term, 2nd, 2009)
Defendant's
contention that plaintiff should be compelled to accept its answer
because plaintiff did not reject the answer within two days of its
receipt, as mandated by CPLR 2101 (f), is without merit. Although a
plaintiff's retention of an answer without a timely objection
constitutes a waiver of objection as to untimeliness, precluding entry
of a default judgment (see e.g. AVA Acupuncture P.C. v Lumbermens Mut. Cas. Co., 14 Misc 3d 138[A],
2007 NY Slip Op 50263[U] [App Term, 2d & 11th Jud Dists 2007]), a
review of the record in the instant case demonstrates that plaintiff
made its application for leave to enter a default judgment long before
it was in receipt of the answer. Once plaintiff made said application,
it thereby objected to defendant's failure to serve a timely answer,
brought that objection to the attention of defendant and the court, and
therefore cannot be deemed to have waived any objection to untimeliness
(see [*2]Katz v Perl, 22 AD3d 806 [2005]).We
note that a default judgment had already been entered against defendant
when it moved to compel the acceptance of its answer or, in the
alternative, to extend its time to serve the answer pursuant to CPLR
3012 (d). Accordingly, defendant should have instead moved to vacate
the default judgment, pursuant to CPLR 5015 (a). In either situation,
however, a defendant is required to establish both a reasonable excuse
for the default and a meritorious defense (see Juseinoski v Board of Educ. of the City of New York, 15 AD3d 353 [2005]) and, in the case at bar, defendant failed to do so.While a court may, in the exercise of its discretion, accept a claim of law office failure as a reasonable excuse (see CPLR 2005), defense counsel was required to "submit supporting facts in evidentiary form sufficient to justify the default" (Incorporated Vil. of Hempstead v Jablonsky, 283 AD2d 553, 554 [2001]), and include "a detailed explanation of [the] oversights" (Hospital for Joint Diseases v ELRAC, Inc., 11 AD3d 432,
433 [2004]). The mere statement in defense counsel's affirmation in
support of the motion that his office failed to timely process the
summons and complaint "due to clerical inadvertence," and that law
office failure was excusable, did not establish a reasonable excuse for
the default (see Ave T MPC Corp. v Chubb Indem. Ins. Co., 20 Misc 3d 142[A], 2008 NY Slip Op 51681[U] [App Term, 2d & 11th Jud Dists 2008]).Because we find that defendant did not establish a reasonable excuse
for the default, it is unnecessary for us to address whether defendant
demonstrated a meritorious defense.
Leifer v Pilgreen Corp., 2009 NY Slip Op 03872 (App. Div., 2nd, 2009)
It is uncontested that the defendant failed to timely serve its
answer. The stipulation extending its time to do so expired in October
2006 and no extension thereof was granted or even sought. Thus, in
order to successfully oppose the plaintiffs' motion for leave to enter
a default judgment against it, the defendant was required to
demonstrate a justifiable excuse for its default and the existence of a
meritorious defense (see CPLR 5015[a][1]; Kouzios v Dery, 57 AD3d 949; Mjahdi v Maguire, 21 AD3d 1067, 1068; cf. Giovanelli v Rivera, 23 AD3d 616). The defendant failed to do so.The defendant's insurance carrier's long delay before defending
this action, without more, was insufficient to establish a reasonable
excuse for the default (see Martinez v D'Alessandro [*2]Custom Bldrs. & Demolition, Inc., 52 AD3d 786, 787; Segovia v Delcon Constr. Corp., 43 AD3d 1143; Lemberger v Congregation Yetev Lev D'Satmar, Inc., 33 AD3d 671,
672). Additionally, the defendant failed to demonstrate the existence
of a meritorious defense. Accordingly, the plaintiffs' motion for leave
to enter a default judgment and to set the matter down for an inquest
should have been granted and the defendant's cross motion for leave to
serve a late answer nunc pro tunc should have been denied (see CPLR 3012[d]).Furthermore, the court erred in deeming the issue of timeliness
of the answer waived by the plaintiffs' withdrawal of their prior
motion for a default judgment. After the defendant served a late
answer, the plaintiffs promptly moved for the same relief, bringing
their objection to the attention of the defendant and the court (see Katz v Perl, 22 AD3d 806, 807).
bruteforcelawyer.com 
Hey Dave!
What if the plaintiff obtained the default judgment by ex-parte application to the clerk, and never served the Defendant with the judgment. Thus, the objection was never “brought to the attention of the defendant”. Then, the defendant served an answer (albeit late), which was never rejected by the plaintiff. Years later, plaintiff seeks to enforce the previously unserved judgment.
Would that warrant a waiver on the part of the plaintiff of the late answer?
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The defendant does not, in all circumstances, need to be provided notice of an application for a default judgment. That aside, the answer can only be, “it depends.” I can tell you that different judges in the lower courts will give different decisions. At the appellate level, my guess is that it would depend on the facts and the affidavits/affirmations in support. I don’t think the facts you give are as cut and dry as the facts in the case in this post.
The J.O. decision comes out of defendants trying to get cute with caselaw. It seems to be a problem particular to no-fault. And unfortunately for other defendants, that sort of thing tends to backfire in subsequent cases.
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