S&M Supply v Allstate Ins. Co.

[*1] S&M Supply v Allstate Ins. Co. 2004 NY Slip Op 50512(U) Decided on May 28, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 28, 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. 2003-1232 K C

S&M SUPPLY INC., a/a/o MUREL VOLCANT, MARIE PIERRE and ANNE SAINTFORT, Appellant,

against

ALLSTATE INSURANCE COMPANY, Respondent.

Appeal by plaintiff from an order of the Civil Court, Kings County (D. Silber, J.), dated June 30, 2003, which denied plaintiff's motion for a default judgment.

Order unanimously affirmed without costs.

The motion court properly held that plaintiff's acceptance of the answer without objection, constituted a waiver of the late service and default (Ligotti v Wilson, 287 AD2d 550 [2001]). The case of Nasca v Gertel (5 AD3d 367 [2004]) is not to the contrary. In that case the defendant was not deemed to have waived the late service of the answer and the default since the answer was served after the plaintiff moved for leave to enter a default judgment.
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Decision Date: May 28, 2004