Abernathy v Ali

[*1] Abernathy v Ali 2004 NY Slip Op 50509(U) Decided on May 26, 2004 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 26, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT:PESCE, P.J., PATTERSON and GOLIA, JJ.
NO. 2003-761 Q C

REGINA ABERNATHY, Appellant,

against

RAJJAB MO ALI, Respondent.

Appeal by plaintiff from an order of the Civil Court, Queens County (K. Kerrigan, J.), entered March 7, 2003, granting defendant's motion to vacate a default judgment and permitting him to file a late answer.

Order unanimously affirmed without costs.

Defendant moved to vacate a default judgment, inter alia, on the ground that he never received notice either of plaintiff's alleged rejection of his answer or the subsequent proceedings to obtain the default judgment. The answer, concededly untimely, interposed defenses to the action based on plaintiff's defective service of the summons and complaint, and plaintiff's comparative negligence. In opposition, plaintiff failed to submit proof in admissible form that she transmitted to defendant her letter rejecting defendant's answer as untimely. In the absence of such proof, plaintiff is deemed to have waived any objection to the untimeliness (Nassau County v Incorporated Vil. of Roslyn, 182 AD2d 678, 679 [1992]; Minogue v Monette, 138 AD2d 851, 852 [1988]), which waiver precluded the subsequent grant of a default judgment (Wittlin v Schapiro's Wine Co., 178 AD2d 160, 161 [1991]; Matter of Romano v Ziegner, 99 AD2d 512 [1984]). Accordingly, insofar as the order below granted defendant's motion to vacate the default judgment, that determination should not be disturbed. While the order further required defendant to serve a new answer and precluded defendant from including therein a defense based on defective service of the summons and complaint, in light of defendant's failure to cross-appeal from those determinations, we do not address the propriety thereof.
Decision Date: May 26, 2004