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CROSS MOTION TO COMPEL ACCEPTANCE OF A LATE ANSWER PROPERLY GRANTED (SECOND DEPT).

The Second Department determined plaintiff in this slip and fall case was not entitled to a default judgment and defendant’s cross motion to compel acceptance of a late answer was properly granted:

On July 28, 2015, the plaintiff commenced this action to recover damages for personal injuries she allegedly sustained when she fell down a stairway leading to the basement of premises owned by the defendant. According to an affidavit of service, the defendant was served with the summons and complaint on September 1, 2015, when it was delivered to a person of suitable age and discretion at his residence. The affidavit of service also provided that the summons and complaint were mailed to the defendant’s residence on September 2, 2015. On or about March 3, 2016, the defendant served a late answer, which the plaintiff rejected as untimely. The plaintiff subsequently moved pursuant to CPLR 3215(f) for leave to enter a default judgment against the defendant on the issue of liability. The defendant opposed the motion and cross-moved, inter alia, pursuant to CPLR 3012(d) to compel the plaintiff to accept his late answer. The defendant argued that he was not properly served, that his delay in answering the complaint was brief, that he had a potentially meritorious defense, and that the case should proceed on the merits. Stavola v Bodd. 2018 NY Slip Op 05617, Second Dept 8-1-18

CIVIL PROCEDURE (CROSS MOTION TO COMPEL ACCEPTANCE OF A LATE ANSWER PROPERLY GRANTED (SECOND DEPT))/CPLR 3215 (CROSS MOTION TO COMPEL ACCEPTANCE OF A LATE ANSWER PROPERLY GRANTED (SECOND DEPT))/CPLR 3212 (CROSS MOTION TO COMPEL ACCEPTANCE OF A LATE ANSWER PROPERLY GRANTED (SECOND DEPT))/ANSWER (CROSS MOTION TO COMPEL ACCEPTANCE OF A LATE ANSWER PROPERLY GRANTED (SECOND DEPT))

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PLAINTIFF WAS A SPECIAL EMPLOYEE, HIS ONLY AVAILABLE REMEDY FOR HIS ON THE JOB... ALTHOUGH THE LACK OF STANDING DEFENSE TO A FORECLOSURE ACTION IS WAIVED IF NOT...