The perils of a reply to a counterclaim

Rossini Excavating Corp. v Shelter Rock Bldrs., LLC, 2011 NY Slip Op 07735 (1st Dept., 2011)

There was no default in answering. Plaintiff waived its objections to the untimeliness of defendants' answer by serving a reply to the counterclaims after rejecting the late answer and moving for a default judgment (cf. Oparaji v Duran 18 AD3d 725). In view of the foregoing, whether defendant demonstrated the grounds required for vacatur of a default and the other issues arising from the subsequent chain of events are academic.

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