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LAW OFFICE FAILURE WAS A REASONABLE EXCUSE FOR FAILING TO ANSWER, DEFENDANT’S MOTION TO EXTEND THE TIME TO APPEAR SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined low office failure was a legitimate excuse for failing to serve an answer. Defendant had made a pre-answer motion to dismiss, thereby demonstrating defendant did not intend to abandon the action:

Defendants satisfied the requirements of CPLR 3012(d), which authorizes an extension of time to appear or plead “upon such terms as may be just and upon a showing of reasonable excuse for delay or default.” Here, the delay in filing an answer was occasioned by law office failure, which can constitute a reasonable excuse … . Defendants’ counsel explained that its failure to file its answer was due to an error in its office’s case management system, which, upon the entry of a pre-answer motion to dismiss, marked the complaint answered. Notably, service of the pre-answer motion to dismiss revealed that defendants did not intend to abandon the action. Plaintiff does not argue that it has been prejudiced as a result of defendants’ three month delay in submitting its answer … , and our determination comports with New York’s strong public policy in favor of litigating matters on the merits … . Hertz Vehicles, LLC v Mollo, 2019 NY Slip Op 03270, First Dept 4-30-19

 

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THE AFFIDAVIT WHICH PURPORTED TO DEMONSTRATE PLAINTIFF HAD STANDING TO BRING... PURSUANT TO MILITARY LAW, PETITIONER SHOULD HAVE BEEN DEEMED TO HAVE SUCCESSFULLY...