Commercial Division Blog

Posted: April 20, 2018 / Categories Commercial, Motion to Dismiss; Motion for Judgment on the Pleadings

Law Office Error Excused; Motion to Compel Plaintiff to Accept Answer Granted

On April 12, 2018, the First Department issued a decision in Naber Electric v. Triton Structural Concrete, Inc., 2018 NY Slip Op. 02562, upholding the grant of a motion to compel a plaintiff to accept a late-filed answer, explaining:

The motion court providently exercised its discretion in denying plaintiffs' motion and granting defendants' cross motion to compel plaintiffs to accept their answer, which was served two weeks late. Defendants' attorney explained that the brief delay in answering resulted from his mistake in calendaring the date the response was due, after he mistakenly requested an extension of time to April 7, rather than May 7. Since defendants' time to answer, without any extension, was April 17th, his mistake should have been apparent to plaintiffs' attorney, who agreed to the requested extension. Defense counsel's inadvertent mistake in calendaring his deadline provided a reasonable excuse for the minimal delay in answering.

Although the affidavit of merit provided by defendants' executive lacked any detail concerning their potential defenses to plaintiffs' claims for payment for work performed on three subcontracts, an affidavit of merit is "not essential to the relief sought" by defendants before entry of a default order or judgment. Accordingly, given the shortness of the delay and absence of evidence of willfulness or prejudice to plaintiffs, as well as the State's policy of resolving disputes on the merits, defendants were properly granted an opportunity to defend plaintiffs' claims on the merits.

(Internal citations omitted).

If you fail to appear in an action after having been properly served, you run the risk that the court will enter judgment against you (a default judgment). This decision shows that sometimes a court will excuse a failure timely to answer, particularly where there is a reasonable explanation for the failure. Contact Schlam Stone & Dolan partner John Lundin at if you or a client have not timely responded to a summons or someone has moved for default judgment against you.