Star Med. Supply v State Farm Auto. Ins. Co.

[*1] Star Med. Supply v State Farm Auto. Ins. Co. 2007 NY Slip Op 51972(U) [17 Misc 3d 129(A)] Decided on October 2, 2007 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 2, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: :PESCE, P.J., GOLIA and RIOS, JJ
2006-908 K C.

Star Medical Supply a/a/o YAMIRA ARONI, RAFAEL CRUZ, OSCAR HERNANDEZ and PIERRE THREAT, Appellant,

against

State Farm Automobile Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.), entered March 8, 2006. The order granted defendant's motion to vacate a default judgment and directed plaintiff to accept defendant's answer as timely.

Order affirmed without costs.

In this action to recover assigned first-party no-fault benefits, it is undisputed that defendant served an untimely answer and that more than two months later, plaintiff sought and obtained a default judgment. Defendant moved to vacate the default judgment and to compel plaintiff to accept its answer. Defendant's motion was granted and this appeal by plaintiff ensued.

A plaintiff's retention of an answer without a timely objection, such as occurred herein, constitutes a waiver of objection as to untimeliness and such a waiver precludes the grant of a default judgment (Wittlin v Schapiro's Wine Co., 178 AD2d 160 [1991]; Neurology and Acupuncture Service, P.C. v Lumbermens Mut. Cas. Co., 14 Misc 3d 129[A], 2006 NY Slip Op 52517[U] [App Term, 2d & 11th Jud Dists]; A.M.B. Med., P.L.L.C. v Lumbermens Mut. Cas. Co., 14 Misc 3d 129[A], 2006 NY Slip Op 52519[U] [App Term, 2d & 11th Jud Dists]; Abernathy v Ali, 3 Misc 3d 136[A], 2004 NY Slip Op 50509[U] [App Term, 2d & 11th Jud Dists]; cf. Celleri v Pabon, 299 AD2d 385 [2002]). Accordingly, vacatur of the "default" judgment was warranted without regard to whether defendant demonstrated a meritorious [*2]defense.

In view of the foregoing, the court below providently exercised its discretion in granting defendant's motion to vacate the default judgment.

Pesce, P.J., and Rios, J., concur.

Golia, J., taking no part.
Decision Date: October 02, 2007