Rossini Excavating Corp. v Shelter Rock Bldrs., LLC

Rossini Excavating Corp. v Shelter Rock Bldrs., LLC 2011 NY Slip Op 07735 Decided on November 3, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 3, 2011
Mazzarelli, J.P., Saxe, Acosta, DeGrasse, Manzanet-Daniels, JJ.
310423/08 5944

[*1]5941-Rossini Excavating Corporation, 5942-Plaintiff-Respondent, 5943-

v

Shelter Rock Builders, LLC, et al., Defendants-Appellants.




Robert Litwack, Forest Hills, for appellants.
Arnold S. Kronick, White Plains, for respondent.

Judgments, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered October 4, 2010, and April 1, 2011, in plaintiff's favor, unanimously reversed, on the law, with costs, and the judgments vacated. Appeal from order, same court and Justice, entered September 8, 2010, which granted plaintiff's motion for a default judgment and denied defendants' motion to compel acceptance of their late answer, unanimously dismissed, without costs, as subsumed in the appeal from the October 4, 2010 judgment. Appeal from order, same court and Justice, entered April 11, 2011, which, upon reargument, adhered to the original determination, unanimously dismissed, without costs, as academic.

There was no default in answering. Plaintiff waived its objections to the untimeliness of defendants' answer by serving a reply to the counterclaims after rejecting the late answer and moving for a default judgment (cf. Oparaji v Duran 18 AD3d 725).
In view of the foregoing, whether defendant demonstrated the grounds required for vacatur of a default and the other issues arising from the subsequent chain of events are academic.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 3, 2011

CLERK