Blogs

Commercial Division Blog

Current Developments in the Commercial Divisions of the
New York State Courts by Schlam Stone & Dolan LLP
Posted: October 30, 2018

Court Allows Defendant to File an Answer 600 Days Late

On October 10, 2018, Justice Sherwood of the New York County Commercial Division issued a decision in Iconic Home LLC v. Franco, 2018 NY Slip Op. 32597(U), allowing a defendant to file an answer 600 days late, explaining:

CPLR 3012(d) provides that upon the application of a party, the court may extend the time to appear or plead, or compel the acceptance of a pleading untimely served, upon such terms as may be just and upon a showing of reasonable excuse for delay or fault. CPLR 2004 allows the court to extend the time fixed by any statute, rule or order for doing any act, upon such terms as may be just and upon good cause shown. One way to demonstrate good cause is by making a factually detailed explanation of law office failure. While not every law office failure will satisfy the good cause requirement, a party should not be deprived of his or her day in court where the delay is attributable to plaintiffs prior counsel and there is no prejudice.

Defendant puts forth a number of excuses for his failure to file a timely answer and counterclaims, most notably that his former counsel failed to file a timely answer, and then withdrew for health reasons, leaving defendant no choice but to proceed as a pro se litigant due to his financial difficulties. Aside from referencing the length of the delay – 600 days – and defendant’s withdrawal of funds in violation of the Preliminary Injunction, plaintiff offers little else to support its argument that it will be prejudiced if this motion is granted. While the delay suffered-is not insignificant, plaintiff will not be as prejudiced by the granting of this motion than defendant would be by its denial, particularly now that it appears defendant is finally ready to proceed with the assistance of counsel.

In New York, the courts are very generous in excusing (most–NOT ALL) errors so cases can be decided on the merits. However, there are limits to this generosity. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client have a question regarding whether it is too late to file an answer.

Click here to subscribe to this or another of Schlam Stone & Dolan’s blogs.

View posts