J.O. Dedicated Med., P.C. v State Farm Mut. Auto. Ins. Co.
Annotate this CaseDecided on May 28, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and RIOS, JJ
2008-1514 K C.
J.O. Dedicated Medical, P.C. a/a/o JORGE OLMEDO, Respondent,
against
State Farm Mutual Automobile Ins. Co., Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Genine D.
Edwards, J.), entered March 27, 2008. The order denied defendant's motion to compel plaintiff to
accept its late answer or, in the alternative, for leave to extend its time to serve the answer.
Order affirmed without costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved to compel plaintiff to accept its late answer or, in the alternative, for leave to extend its time to serve the answer. The Civil Court denied the motion on the ground that defendant had failed to demonstrate both a reasonable excuse for the default as well as a meritorious defense. This appeal by defendant ensued.
Defendant's contention that plaintiff should be compelled to accept its answer because plaintiff did not reject the answer within two days of its receipt, as mandated by CPLR 2101 (f), is without merit. Although a plaintiff's retention of an answer without a timely objection constitutes a waiver of objection as to untimeliness, precluding entry of a default judgment (see e.g. AVA Acupuncture P.C. v Lumbermens Mut. Cas. Co., 14 Misc 3d 138[A], 2007 NY Slip Op 50263[U] [App Term, 2d & 11th Jud Dists 2007]), a review of the record in the instant case demonstrates that plaintiff made its application for leave to enter a default judgment long before it was in receipt of the answer. Once plaintiff made said application, it thereby objected to defendant's failure to serve a timely answer, brought that objection to the attention of defendant and the court, and therefore cannot be deemed to have waived any objection to untimeliness (see [*2]Katz v Perl, 22 AD3d 806 [2005]).
We note that a default judgment had already been entered against defendant when it moved to compel the acceptance of its answer or, in the alternative, to extend its time to serve the answer pursuant to CPLR 3012 (d). Accordingly, defendant should have instead moved to vacate the default judgment, pursuant to CPLR 5015 (a). In either situation, however, a defendant is required to establish both a reasonable excuse for the default and a meritorious defense (see Juseinoski v Board of Educ. of the City of New York, 15 AD3d 353 [2005]) and, in the case at bar, defendant failed to do so.
While a court may, in the exercise of its discretion, accept a claim of law office failure as a reasonable excuse (see CPLR 2005), defense counsel was required to "submit supporting facts in evidentiary form sufficient to justify the default" (Incorporated Vil. of Hempstead v Jablonsky, 283 AD2d 553, 554 [2001]), and include "a detailed explanation of [the] oversights" (Hospital for Joint Diseases v ELRAC, Inc., 11 AD3d 432, 433 [2004]). The mere statement in defense counsel's affirmation in support of the motion that his office failed to timely process the summons and complaint "due to clerical inadvertence," and that law office failure was excusable, did not establish a reasonable excuse for the default (see Ave T MPC Corp. v Chubb Indem. Ins. Co., 20 Misc 3d 142[A], 2008 NY Slip Op 51681[U] [App Term, 2d & 11th Jud Dists 2008]).
Because we find that defendant did not establish a reasonable excuse for the default, it is unnecessary for us to address whether defendant demonstrated a meritorious defense.
Accordingly, the order is affirmed.
Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: May 28, 2009
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