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You are here: Home1 / Civil Procedure2 / MOTION TO COMPEL ACCEPTANCE OF A LATE ANSWER SHOULD HAVE BEEN GRANTED (SECOND...
Civil Procedure

MOTION TO COMPEL ACCEPTANCE OF A LATE ANSWER SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion to compel plaintiff to accept an answer which was two days late should have been granted pursuant to CPLR 2004:

CPLR 2004 provides that, “[e]xcept where otherwise expressly prescribed by law, the court may 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, whether the application for extension is made before or after the expiration of the time fixed.” Given the strong public policy favoring the resolution of cases on the merits, “the Supreme Court may compel a plaintiff to accept an untimely answer (see CPLR 2004, 3012[d]) 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”… . Here, in light of the defendant’s brief and unintentional delay in serving its answer, the lack of prejudice to the plaintiff, and the existence of a potentially meritorious defense, the Supreme Court improvidently exercised its discretion in denying the defendant’s motion pursuant to CPLR 2004 to compel the plaintiff to accept its late answer … . Baldwin Rte. 6, LLC v Bernad Creations, Ltd., 2018 NY Slip Op 01039, Second Dept 2-14-18

CIVIL PROCEDURE (MOTION TO COMPEL ACCEPTANCE OF A LATE ANSWER SHOULD HAVE BEEN GRANTED (SECOND DEPT))/ANSWER (CIVIL PROCEDURE, MOTION TO COMPEL ACCEPTANCE OF A LATE ANSWER SHOULD HAVE BEEN GRANTED (SECOND DEPT))/CPLR 2004 (MOTION TO COMPEL ACCEPTANCE OF A LATE ANSWER SHOULD HAVE BEEN GRANTED (SECOND DEPT))

February 14, 2018
Tags: Second Department
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CITY’S POTENTIAL LIABILITY FOR THE ACTIONS OF A CITY BUS DRIVER WAS BASED ON RESPONDEAT SUPERIOR, THEREFORE A NEGLIGENT HIRING AND RETENTION ACTION WAS NOT VIABLE AND THE DRIVER’S PERSONNEL FILE WAS NOT DISCOVERABLE (SECOND DEPT).
TRIAL JUDGE’S FAILURE TO WARN DEFENDANT OF THE CONSEQUENCES OF DISRUPTIVE BEHAVIOR BEFORE REMOVING DEFENDANT FROM THE COURTROOM WAS REVERSIBLE ERROR.
PLAINTIFF BANK DID NOT DEMONSTRATE STRICT COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304 AND THEREFORE WAS NOT ENTITLED TO SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION; DEFENDANT’S MERE DENIAL OF RECEIPT OF THE NOTICE DID NOT WARRANT SUMMARY JUDGMENT IN DEFENDANT’S FAVOR (SECOND DEPT).
Slip and Fall Action Based On “Trivial Defect” Dismissed
IF THE NOTE OF ISSUE HAS BEEN VACATED, THE CPLR 3404 REQUIREMENTS FOR RESTORING THE ACTION TO THE CALENDAR DO NOT APPLY; THERFORE THE MOTION TO RESTORE NEED NOT BE MADE WITHIN A YEAR AND NEED NOT DEMONSTRATE A MERITIORIOUS CAUSE OF ACTION, REASONABLE EXCUSE, NO INTENT TO ABANDON, AND LACK OF PREJUDICE TO DEFENDANT (SECOND DEPT).
THE BANK’S PROOF THAT THE RPAPL 1304 NOTICE OF FORECLOSURE WAS MAILED TO THE DEFENDANTS WAS INSUFFICIENT; THE BANK’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
PLAINTIFF’S DEPOSITION TESTIMONY THAT HE DID NOT RECALL HOW OR WHERE HE SLIPPED AND FELL AND DID NOT RECALL A FIGHT OR BEING HIT WERE FATAL TO THE SLIP AND FALL AND ASSAULT CAUSES OF ACTION (SECOND DEPT).

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