Tsioumas v Time Out Health & Fitness, 2011 NY Slip Op 08307 (1st Dept., 2011)

The July 2009 order, which was affirmed on a prior appeal (78 AD3d 619 [2011]), vacated an order dismissing the action for plaintiff's failure to restore it to the calendar within one year of it being marked off. Contrary to plaintiff's position, our order of affirmance in no way altered or modified the terms of the July 2009 order, which directed plaintiff to serve a copy of the order with notice of entry upon defendant within 20 days of the date the order was issued and stated that "plaintiff may move . . . to restore this action to the trial calendar" upon compliance with the court's directive. Plaintiff did not serve a copy of that order with notice of entry until December 22, 2009, more than four months after the expiration of the 20-day deadline.

Plaintiff moved to modify the portion of the July 2009 order relating to service of the order. The motion was properly denied in light of plaintiff's conclusory assertion of an unspecified "clerical error" as an excuse for the delay and failure to address the subsequent delay in moving for modification. In any event, the delays are part of a pattern of neglect (see Gavillan v City of New York, 11 AD3d 217 [2004]).

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.