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Current Developments in the Commercial Divisions of the
New York State Courts by Schlam Stone & Dolan LLP
Posted: June 2, 2021

Court Grants Order Allowing Late Answer When Delay Was Short and There Was No Prejudice to the Plaintiff

On May 11, 2021, Justice Knipel of the Kings County Commercial Division issued a decision in Old Republic Natl. Tit. Ins. Co. v. Salamon, 2021 NY Slip Op. 31631(U), granting an order allowing a late answer when the delay was short and there was no prejudice to the plaintiff, explaining:

CPLR 3012 (d) provides that:

Extension of time to appear or plead. 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 default.

In light of the public policy favoring the resolution of cases on their merits, the Supreme Court may compel a plaintiff to accept an untimely answer where the record demonstrates that there was only a short delay in appearing or answering the complaint, that there was no willfulness on the part of the defendant, that there would be no prejudice to the plaintiff, and that a potentially meritorious defense exists.

Under the circumstances presented here, where there was only a fourteen-day delay in answering the amended complaint and there is no discernable prejudice to Old Republic, defendants’ cross motion to compel Old Republic to accept their answer, which was electronically filed on February 5, 2020, is warranted. Old Republic’s claim that defendants’ defenses are barred by res judicata should properly be considered on a dispositive motion after issue is joined.

(Internal quotations and citations omitted).

If you are served with a complaint and fail timely to answer, the court can enter judgment against you: a default judgment. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client have questions regarding whether you have been properly served or if a default judgment has been entered against you.

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