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IF PLAINTIFF DOES NOT REJECT AN UNTIMELY ANSWER SUBMITTED WITHOUT LEAVE OF COURT OR STIPULATION, OBJECTION TO THE ANSWER AS UNTIMELY IS WAIVED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the amended answer should not have been struck because it was untimely. The plaintiff did not reject the amended answer:

Although Saldarriaga [defendant] filed her amended answer approximately 20 months after filing her original answer, well beyond the period within which an amended pleading could have been served as of right (see CPLR 3025[a]), without obtaining leave of court or the stipulation of all parties to the amendment … , the plaintiff did not reject the amended answer. By “retaining the amended pleading without objection” , the plaintiff waived any “objection as to untimeliness” … . Thus, Saldarriaga’s amended answer should not have been stricken as untimely.  Citibank, N.A. v Saldarriaga, 2023 NY Slip Op 00647, Second Dept 2-8-23

Practice Point: If a plaintiff accepts an untimely answer submitted without leave of court or a stipulation, objection to the answer as untimely is waived.

 

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