CPLR R. 2215 Relief Demanded by other than moving party
At least three days prior to the time at which the motion is noticed to be heard, or seven days prior to such time if demand is properly made pursuant to subdivision (b) of rule 2214, a party may serve upon the moving party a notice of cross-motion demanding relief, with or without supporting papers; provided, however, that:
(a) if such notice and any supporting papers are served by mailing, as provided in paragraph two of subdivision (b) of rule 2103, they shall be served three days earlier than as prescribed in this rule;
and
(b) if served by overnight delivery, as provided in paragraph six of subdivision (b) of rule 2103, they shall be served one day earlier than as prescribed in this rule. Relief in the alternative or of several different types may be demanded; relief need not be responsive to that demanded by the moving party.
May v Hartsdale Manor Owners Corp., 2010 NY Slip Op 03882 (App. Div., 2nd, 2010)
To successfully oppose a motion for leave to enter a default judgment
based on the failure to timely serve an answer, a defendant must
demonstrate a reasonable excuse for its delay and the existence of a
meritorious defense (see Kouzios v Deny, 57 AD3d 949; Giovanelli
v Rivera, 23 AD3d 616; Mjahdi v Maguire, 21 AD3d 1067, 1068;
Thompson v Steuben Realty Corp., 18 AD3d 864, 865; Dinstber v
Fludd, 2 AD3d 670, 671). Here, the defendant CDT Real Estate
Management Corp. (hereinafter CDT) attempted to place the blame for its
default in answering upon its insurance company. However, CDT already
was in default by the time it finally forwarded the summons and
complaint to its insurance broker, and CDT failed to offer any
explanation for this delay. Accordingly, it was an improvident exercise
of discretion to excuse the default of CDT, and to extend its time to
serve an answer in the absence of a cross motion for such relief (see
CPLR 2215; Zino v Joab Taxi, Inc., 20 AD3d 521, 522; Hosten
v Oladapo, 44 AD3d 1006).
bruteforcelawyer.com 