The Second Department, on the other hand, requires a meritorious defense.
HSBC Bank USA, N.A. v Donaldson, 2020 NY Slip Op 01581 [1st Dept. 2020]
Contrary to defendant’s contention, since plaintiff moved pursuant to CPLR 3012(d), no showing of a meritorious defense was required.
Mazzola v Village Hous. Assoc., LLC, 2018 NY Slip Op 05759 [2d Dept 2018]
To avoid dismissal of an action for failure to serve a complaint after a demand for the complaint has been made pursuant to CPLR 3012(b), a plaintiff must demonstrate both a reasonable excuse for the delay in serving the complaint and a potentially meritorious cause of action (see Lobel v Hilltop Vil. Coop., No. 4, 138 AD3d 938; Telian v Freund, 129 AD3d 828; Carducci v Russell, 120 AD3d 1375). The determination of what constitutes a reasonable excuse is within the sound discretion of the court (see Castor v Cuevas, 137 AD3d 734; Khamis v Corporate Transp. Group, Ltd., 135 AD3d 825, 826). While the court has the discretion to accept law office failure as a reasonable excuse (see CPLR 2005), a conclusory, undetailed, and uncorroborated claim of law office failure does not amount to a reasonable excuse (see Lobel v Hilltop Vil. Coop., No. 4, 138 AD3d at 939; Khamis v Corporate Transp. Group, Ltd., 135 AD3d at 826; Carducci v Russell, 120 AD3d at 1375-1376; Rock v New York City Tr. Auth., 78 AD3d 680; Leibowitz v Glickman, 50 AD3d 643; Miraglia v County of Nassau, 295 AD2d 411).
Here, the Supreme Court improvidently exercised its discretion in denying the defendant's motion pursuant to CPLR 3012(b) to dismiss the action on the ground that the plaintiff failed to timely serve the complaint. The excuse proffered by the plaintiff, that his counsel did not receive the demand for the complaint that was served upon him by regular mail, was unreasonable under the circumstances. The record demonstrates, and the plaintiff does not dispute, that this action was commenced as an electronically filed case in the New York State Courts Electronic Filing System (hereinafter NYSCEF). On August 2, 2016, the defendant uploaded a notice of appearance and demand for the complaint to the NYSCEF system, and also served a copy upon the plaintiff by regular mail. That same day, the NYSCEF system provided an email notification to the plaintiff's counsel that the notice of appearance and demand for the complaint had been uploaded. The plaintiff failed to proffer any excuse, let alone a reasonable excuse, for his failure to timely serve a complaint in response to this email notification. In light of the plaintiff's failure to demonstrate a reasonable excuse, we need not consider whether he had a potentially meritorious cause of action.
CPLR § 3012 Service of pleadings and demand for complaint
(b) Service of complaint where summons served without complaint
CPLR § 105 Definitions
(u) Verified pleading. A “verified pleading” may be utilized as an affidavit whenever the latter is required.
CPLR § 2005 Excusable delay or default
Mitrani Plasterers Co., Inc. v SCG Contr. Corp., 2012 NY Slip Op 05398 (2nd Dept. 2012)
To avoid dismissal of the action for failure to serve a complaint after a demand therefor has been made pursuant to CPLR 3012(b), a plaintiff must demonstrate both a reasonable excuse for the delay in serving the complaint and a potentially meritorious cause of action (see Perez-Faringer v Heilman, 79 AD3d 837, 838; Gibbons v Court Officers' Benevolent Assn. of Nassau County, 78 AD3d 654, 654; Pristavec v Galligan, 32 AD3d 834, 834). The determination of what constitutes a reasonable excuse for a default lies within the sound discretion of the court (see Pristavec v Galligan, 32 AD3d at 834-835). When exercising its discretion in this regard, a court should consider all relevant factors, including the extent of the delay, the prejudice to the opposing party, and the lack of an intent to abandon the action (see Grace v Follini, 80 AD3d 560, 560-561; Aquilar v Nassau Health Care Corp., 40 AD3d 788, 789; Harcztark v Drive Variety, Inc., 21 AD3d 876).
The excuse of law office failure proffered by the plaintiff's attorney was reasonable under the circumstances of this case, given the length of the delay, the lack of prejudice to the defendant, the plaintiff's active participation in a related proceeding brought by the defendant against the plaintiff, and the plaintiff's lack of intent to abandon the action (see CPLR 2005; Aquilar v Nassau Health Care Corp., 40 AD3d at 789; Orwell Bldg. Corp. v Bessaha, 5 AD3d 573, 574-575). Furthermore, the plaintiff adequately demonstrated the potential merit of its action by attaching a detailed verified complaint and an affidavit from its officer (see CPLR 105[u]; Pristavec v Galligan, 32 AD3d at 835). Accordingly, the Supreme Court providently exercised its discretion in denying the defendant's motion to dismiss the action and in granting the plaintiff's cross motion to compel acceptance of the untimely complaint.
Dayan v Darche, 2012 NY Slip Op 04312 (2nd Dept. 2012)
To avoid dismissal of the action for failure to serve a complaint after a demand for the complaint has been made pursuant to CPLR 3012(b), a plaintiff must demonstrate both a reasonable excuse for the delay in serving the complaint and a potentially meritorious cause of action (see Perez-Faringer v Heilman, 79 AD3d 837, 838; Gibbons v Court Officers' Benevolent Assn. of Nassau County, 78 AD3d 654, 654; Pristavec v Galligan, 32 AD3d 834, 834; Maldonado v Suffolk County, 23 AD3d 353, 353-354). Here, the plaintiff failed to proffer any excuse for her lengthy delay in serving the complaint. Furthermore, she failed to establish that she had a potentially meritorious cause of action (see generally Rosner v Paley, 65 NY2d 736, 738; Allen v Potruch, 282 AD2d 484, 484-485; Iannacone v Weidman, 273 AD2d 275, 276-277; Rubinberg v Walker, 252 AD2d 466, 467). Accordingly, the Supreme Court properly granted the defendant's motion to dismiss the action.
In addition, the plaintiff's motion for leave to renew her opposition to the defendant's motion to dismiss the action was properly denied. In support of her motion, the plaintiff proffered her attorney's affirmation in an attempt to provide a reasonable excuse for the delay in serving the complaint. However, the attorney's affirmation, which, inter alia, proffered an unsubstantiated excuse of disabling illnesses, was insufficient to warrant a change of the prior determination (see CPLR 2221[e][2]; Cynan Sheetmetal Prods., Inc. v B.R. Fries & Assoc., Inc., 83 AD3d 645, 646; Mattera v Capric, 54 AD3d 827, 828; Borgia v Interboro Gen. Hosp., 90 AD2d 531, affd 59 NY2d 802; Wolfe v Town of Hempstead, Dept. of Parks & Recreation, 75 AD2d 811, 812). Moreover, the plaintiff failed to offer a reasonable justification for failing to present this affirmation in opposition to the defendant's original motion (see CPLR 2221[e][3]; Brown Bark I, L.P. v Imperial Dev. & Constr. Corp., 65 AD3d 510, 512; Zarecki & Assoc., LLC v Ross, 50 AD3d 679, 680; Reshevsky v United Water N.Y., Inc., 46 AD3d 532, 533).
CPLR § 3012 Service of pleadings and demand for complaint
(d) Extension of time to appear or plead
CPLR R. 5015 Relief from judgment or order
Garal Wholesalers, Ltd. v Raven Brands, Inc., 2011 NY Slip Op 02349 (App. Div., 2nd 2011)
A party seeking to vacate a default in appearing or answering and to serve a late answer must demonstrate a reasonable excuse for the default and a potentially meritorious defense to the action (see CPLR 5015[a][1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141; Heidari v First Advance Funding Corp., 55 AD3d 669; Levi v Levi, 46 AD3d 519; 599 Ralph Ave. Dev., LLC. v 799 Sterling Inc., 34 AD3d 726; New York & Presbyt. Hosp. v Travelers Prop. Cas. Ins. Co., 27 AD3d 708). The good-faith belief of the president of the defendant Raven Brands, Inc. (hereinafter Raven), that his telephone conversation with the plaintiff's attorney and his subsequent letters denying the allegations in the complaint were sufficient to answer the complaint did not constitute a sufficient excuse for the default, particularly since the plaintiff's attorney responded by letter stating that Raven was in default in answering the complaint (see Tucker v Rogers, 95 AD2d 960). Furthermore, Raven's erroneous assumptions regarding the validity of the action and the need to defend did not constitute reasonable excuses for its default in answering and for its almost four-month delay in appearing in this action (see Yao Ping Tang v Grand Estate, LLC, 77 AD3d 822, 823; Awad v Severino, 122 AD2d 242; Passalacqua v Banat, 103 AD2d 769). Moreover, the affidavit of Raven's president, which contained only conclusory assertions without any evidentiary support, was insufficient to establish a potentially meritorious defense to the action (see Kolajo v City of New York, 248 AD2d 512, 513; Peterson v Scandurra Trucking Co., 226 AD2d 691, 692; Lener v Club Med, 168 AD2d 433, 435).
Pena-Vazquez v Beharry, 2011 NY Slip Op 02462 (App. Div., 1st, 2011)
The court providently exercised its discretion in denying plaintiffs' motion and deeming defendants' answer timely served nunc pro tunc. Plaintiffs' acceptance of defendants' answer, without objection, constituted a waiver of the late service and default (see Ligotti v Wilson, 287 AD2d 550, 551 [2001]). In any event, the settlement discussions between plaintiffs and defendants' insurer constitute a reasonable excuse for defendants' delay in answering (see CPLR 3012[d]; see also Finkelstein v East 65th St. Laundromat, 215 AD2d 178 [1995]). Contrary to plaintiffs' contention, defendants were not required to demonstrate the existence of a meritorious defense (see Verizon N.Y. Inc. v Case Constr. Co., Inc., 63 AD3d 521 [2009]).
The court providently exercised its discretion in considering defendants' surreply. The court granted permission for the filing of the surreply, which contained courtesy copies of affidavits that had been filed with the Clerk prior to the motion return date (see generally Barbuto v Winthrop Univ. Hosp., 305 AD2d 623, 623-624 [2003]).
I missed this case, but found it on JT's blog.
Ferdico v Zweig, 2011 NY Slip Op 02621 (App. Div., 2nd 2011)
The Supreme Court providently exercised its discretion in denying that branch of the cross motion of the defendants Brian Mullen and Marybeth Mullen (hereinafter together the Mullens) which was to vacate a judgment dated March 11, 2009, pursuant to CPLR 5015(a)(2). The Mullens failed to establish, inter alia, that the purportedly newly discovered evidence, a report of an alleged handwriting expert concluding that the alleged signature of Morris Zweig on a contract of sale dated July 15, 2004, that had been attached as an exhibit to the plaintiffs' complaint was a forgery, could not have been discovered earlier through the exercise of due diligence (see Sicurelli v Sicurelli, 73 AD3d 735; Vogelgesang v Vogelgesang, 71 AD3d 1132, 1133-1134; Sieger v Sieger, 51 AD3d 1004, 1005; Matter of State Farm Ins. Co. v Colangelo, 44 AD3d 868). The Supreme Court also properly denied that branch of the Mullens' cross motion which was to vacate the judgment dated March 11, 2009, pursuant to CPLR 5015(a)(3), as they failed to establish that the judgment was procured as a result of fraud, misrepresentation, or other improper conduct (see Matter of Johnson v New York City Dept. of Educ., 73 AD3d 927, 928; Sicurelli v Sicurelli, 73 AD3d 735; Matter of Tellez, 56 AD3d 678).
The Supreme Court also properly denied that branch of the Mullens' cross motion which was to renew their motion for summary judgment dismissing the complaint insofar as asserted against them and their opposition to the plaintiffs' motion for summary judgment on the first cause of action for specific performance of the contract of sale dated July 15, 2004, as they failed to set forth both "new facts not offered on the prior motion[s] that would change the prior determination" and a "reasonable justification for the failure to present such facts on the prior motion[s]" (CPLR 2221[e][2], [3]; see Bank of Am., N.A., USA v Friedman, 44 AD3d 696; Yarde v New York City Tr. Auth., 4 AD3d 352, 353; Johnson v Marquez, 2 AD3d 786, 788-789; Riccio v DePeralta, 274 AD2d 384). The Mullens failed to set forth a reasonable justification as to why they did not previously obtain the report of their alleged handwriting expert in time to submit it in support of their original cross motion or in opposition to the plaintiffs' original motion, given that the contract of sale analyzed by their alleged expert was attached as an exhibit to the complaint in the instant action.
CPLR § 3012 Service of pleadings and demand for complaint
(d) Extension of time to appear or plead
Judiciary Law § 470
Empire Healthchoice Assur., Inc. v Lester, 2011 NY Slip Op 01412 (App. Div., 1st 2011)
Judiciary Law § 470 requires an attorney admitted to practice in New York who is not a New York resident to maintain an office in this state for the practice of law (see Kinder Morgan Energy Partners, LP v Ace Am. Ins. Co., 51 AD3d 580 [2008]; Lichtenstein v Emerson, 251 AD2d 64 [1998]). Failure of counsel to maintain a local office requires striking of a pleading served by such attorney, without prejudice (see Kinder Morgan, 51 AD3d at 580; Neal v Energy Transp. Group, 296 AD2d 339 [2002]). Thus the court was correct in striking defendants' answer.
The court also properly granted defendants' cross motion pursuant to CPLR 3012(d) for an extension of time to answer (Nason v Fisher, 309 AD2d 526 [2003]). Plaintiff's contention that Judiciary Law § 470 barred the motion court from extending defendant's time to answer is incorrect, since the striking of a pleading under that statute is without prejudice (see Kinder Morgan, 51 AD3d at 580; Neal v Energy Transp. Group, 296 AD2d at 339). Defendants' delay in serving a proper answer was short and the defect in the original answer was attributable to law office failure by defendants' original attorney. Plaintiff was not prejudiced by any delay because the original defective answer was timely served (see Gazes v Bennett, 70 AD3d 579 [2010]). Defendants were not required to demonstrate a meritorious defense in order to be granted relief under CPLR 3012(d) (see Nason, 309 AD2d at 526; DeMarco v Wyndham Intl., 299 AD2d 209 [2002]; Mufalli v Ford Motor Co., 105 AD2d 642 [1984]).
CPLR § 3012 Service of pleadings and demand for complaint
(d) Extension of time to appear or plead
CPLR § 2005 Excusable delay or default
Dinstber v Allstate Ins. Co., 2010 NY Slip Op 06200 (App. Div., 3rd 2010)
Plaintiff served a summons and verified complaint on the Insurance
Department on July 29, 2008 pursuant to Insurance Law § 1212. However,
defendant allegedly did not receive them until August 21, 2008. Although
defendant served an answer on August 28, 2008, plaintiff rejected it
because it was not verified. On September 4, 2008 — one day after
receiving plaintiff's letter of rejection — defendant served a second
answer, virtually identical to the first but properly verified, which
was rejected by plaintiff as untimely. Defendant then promptly moved to
extend its time to answer and to compel plaintiff to accept late service
thereof. Plaintiff cross-moved for a default judgment. Supreme Court
granted defendant's motion — giving defendant 30 days to file, serve and
file proof of service of the second answer — and denied plaintiff's
cross motion. Plaintiff now appeals and we affirm.
[*2]Pursuant to CPLR 3012 (d),
Supreme Court has the discretion to permit late service of an answer
upon the demonstration of a reasonable excuse for the delay or default (see Rickert v Chestara, 56 AD3d 941, 942 [2008]; Watson v Pollacchi, 32 AD3d 565,
565 [2006]). "To that end, '[w]hether there is a reasonable excuse for a
default is a discretionary, sui generis determination to be made by the
court based on all relevant factors, including the extent of the delay,
whether there has been prejudice to the opposing party, whether there
has been willfulness, and the strong public policy in favor of resolving
cases on the merits'" (Rickert v Chestara, 56 AD3d at 942, quoting Harcztark v Drive Variety, Inc., 21 AD3d 876, 876-877 [2005]; see Watson v Pollacchi, 32 AD3d at 565). Also relevant is whether the untimely answer sets forth a meritorious defense to plaintiff's complaint (see Rickert v Chestara, 56 AD3d at 942; Watson v Pollacchi, 32 AD3d at 565).Here, contrary to plaintiff's assertion, we find that defendant
proffered both a reasonable excuse for its delay in serving a verified
answer and a sufficiently meritorious defense to the claims. Defendant
proffered several reasons for its delay. First, defendant submitted
evidence that it did not actually receive the complaint from the
Insurance Department until one week before the time to answer expired
and that an incorrect date of service on the transmittal sheet caused
further delay in the complaint being referred to counsel. After
unsuccessfully attempting to contact plaintiff to obtain an extension of
time to serve an answer, defendant effected such service one day after
counsel's receipt of the complaint. Secondly, defendant alleged law
office failure in neglecting to include the verification with the
initial answer, which was timely served. In our view, these
circumstances established a reasonable excuse for the default (see CPLR 2005).
We also note that defendant's answer set forth a myriad of
defenses including, among others, failure to state a cause of action,
failure to comply with the terms and conditions of the policy, fraud or
perjury on plaintiff's part and that the claim is time-barred. In
addition, defendant's attorney provided Supreme Court with the original
denial of coverage letter, which set forth in detail the reasons why
plaintiff's claim for benefits was denied. Such assertions set forth a
sufficiently meritorious defense for purposes of defendant's motion (see Chase Manhattan Automotive Fin. Corp. v Allstate Ins. Co., 272 AD2d 772, 774-775 [2000]).In view of defendant's reasonable excuse for the default, the
minimal delay, defendant's expeditious motion to compel acceptance of
the answer, the absence of proof that the default was willful or any
indication that plaintiff was prejudiced by the delay, and the existence
of an arguably meritorious defense, we conclude that Supreme Court's
decision to grant defendant's motion to extend the time to answer and to
compel plaintiff to accept service was a proper exercise of its
discretion (see Rickert v Chestara, 56 AD3d at 942; Acker v VanEpps, 45 AD3d 1104, 1105, 1106 [2007]).
The bold is mine.
CPLR § 3012 Service of pleadings and demand for complaint
(d) Extension of time to appear or plead
Gazes v Bennett, 2010 NY Slip Op 01575 (App. Div., 1st, 2010)
Plaintiff brought this malpractice action against defendant in connection with his representation of the debtor and trustee in a wrongful termination action (see Horan v New York Tel. Co., 309 AD2d 642 [2003]). Plaintiff's time to commence this action and serve a summons and complaint expired on September 13, 2007, six months after the dismissal of an earlier action arising out of the same transactions (see CPLR 205[a]). Commencement was timely, but attempted service on September 12, 2007 was defective because the mailing component of service was sent to defendant's place of work in an envelope indicating it was from a law firm, an error attributable to the process server. The denial of plaintiff's request that defendant be compelled to accept late service of the pleadings was contained in a final order, and is thus appealable as of right (see CPLR 5701[a][2]).
A court may "compel the acceptance of a pleading untimely served, upon such terms as may be just and upon a showing of reasonable excuse for delay" (CPLR 3012[d]). Plaintiff submitted a reasonable excuse for delay in proper service — namely, the process server's error — which was attributable to counsel and constituted excusable law office failure (see CPLR 2005).
Plaintiff set forth a meritorious action, and the delay was excusable in light of its brevity and the absence of any pattern of default; defendant should have been compelled to accept late service pursuant to CPLR 3012(d) (see Nason v Fisher, 309 AD2d 526 [2003]). This is especially so in the absence of any prejudice to defendant, who was actually and timely — although not properly — served with the complaint (see Lisojo v Phillip, 188 AD2d 369 [1992]; see also CPLR 2001, 2004), and in the absence of any indication that plaintiff intended to abandon his claim (see Nolan v Lechner, 60 AD3d 473 [2009]).
The bold is mine.
CPLR § 3012 Service of pleadings and demand for complaint
(b) Service of complaint where summons served without complaint
CPLR § 321 Attorneys
(c) Death, removal or disability of attorney
If an attorney dies, becomes physically or mentally incapacitated, or
is removed, suspended or otherwise becomes disabled at any time before
judgment, no further proceeding shall be taken in the action against
the party for whom he appeared, without leave of the court, until
thirty days after notice to appoint another attorney has been served
upon that party either personally or in such manner as the court
directs.
Moray v Koven & Krause, Esqs., 2009 NY Slip Op 03877 (App. Div., 2nd, 2009)
To avoid dismissal for failure to serve a complaint after a
demand therefor has been served pursuant to CPLR 3012(b), a plaintiff
must demonstrate both a reasonable excuse for the delay in serving the
complaint and the existence of a meritorious cause of action (see Leibowitz v Glickman, 50 AD3d 643; Tutora v Schirripa, 1 AD3d 349, 350; Balgley v Cammarata, 299
AD2d 432). Here, the plaintiff failed to show the existence of a
meritorious cause of action. Accordingly, the Supreme Court did not
improvidently exercise its discretion in granting the defendant's
motion to dismiss the action.The plaintiff's contention that the action was stayed pursuant
to CPLR 321(c) is raised for the first time on appeal and, thus, is not
properly before this Court (see Telmark, Inc. v Mills, 199 AD2d 579, 580; see also KPSD Mineola, Inc. v Jahn, 57 AD3d 853; Triantafillopoulos v Sala Corp., 39 AD3d 740).
Splinters, Inc. v Greenfield, 2009 NY Slip Op 04411 (App. Div., 2nd, 2009)
The Supreme Court improvidently exercised its discretion in denying the
branch of the defendants' motion which was to dismiss the 2005 action.
In order "[t]o avoid dismissal for failure to timely serve a complaint
after a demand for the complaint has been made pursuant to CPLR
3012(b), a plaintiff must demonstrate both a reasonable excuse for the
delay in serving the complaint and a meritorious cause [*3]of action" (Balgley v Cammarate, 299 AD2d 432; see Pristavec v Galligan, 32 AD3d 834; Maldonado v Suffolk County, 23 AD3d 353; Giordano v Vanchieri & Perrier, 16 AD3d 621; Tutora v Schirripa,
1 AD3d 349). The plaintiff offered no excuse for the failure to serve a
complaint during the approximately seven-month period from the demand
in February 2006 to October 2006, when it purportedly intended to serve
a complaint but failed to do so allegedly as a result of law-office
failure. Further, until an attorney of record withdraws or is changed
or discharged in the manner prescribed by CPLR 321, his or her
authority as attorney of record for his or her client continues, as to
adverse parties, unabated (see Moustakas v Bouloukos, 112 AD2d
981, 983). Thus, even if service of the complaint in October 2006 would
have been timely, the service would have been ineffective, since the
plaintiff's second attorney had not yet been substituted as counsel and
therefore had no authority to act for the plaintiff in that action (see
CPLR 321[b]). The 2005 action should therefore have been dismissed for
failure to respond properly and timely to the defendants' demand for a
complaint.
The bold is mine.
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).
CPLR § 3215 Default judgment
CPLR § 3012 Service of pleadings and demand for complaint
(d) Extension of time to appear or plead
CPLR § 308 Personal service upon a natural person
CPLR § 308(4)
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.
bruteforcelawyer.com 