Specialists In Urology, P.A. v Costello

[*1] Specialists In Urology, P.A. v Costello 2010 NY Slip Op 50645(U) [27 Misc 3d 130(A)] Decided on April 8, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 8, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : MOLIA, J.P., LaCAVA and IANNACCI, JJ
2009-664 N C.

Specialists in Urology, P.A., Respondent,

against

Donald Costello, Appellant.

Appeal from an order of the District Court of Nassau County, First District (Michael A. Ciaffa, J.), dated February 4, 2009. The order denied defendant's motion for the entry of a default judgment against plaintiff on the counterclaims and granted plaintiff's cross motion seeking, in effect, leave to serve a late reply to defendant's counterclaims.

ORDERED that the order is affirmed without costs.

Plaintiff commenced the instant breach of contract action to recover for unpaid medical bills. On July 23, 2008, defendant served an answer together with counterclaims. By notice of motion dated October 10, 2008, defendant moved for the entry of a default judgment on his counterclaims for plaintiff's failure to timely reply to the counterclaims. Plaintiff cross-moved to vacate its default in submitting a reply to the counterclaims and for an order providing that the reply, which was annexed to its cross motion papers, be deemed served upon defendant. The District Court denied defendant's motion for the entry of a default judgment and granted plaintiff's cross motion. The instant appeal by defendant ensued.

Since plaintiff was not required to reply to defendant's counterclaims (see UDCA 907 [a]), plaintiff was not in default for failing to serve and file a reply. Therefore, the District Court properly denied defendant's motion for the entry of a default judgment against plaintiff on the counterclaims.

Considering the absence of any prejudice or surprise to defendant and in view of the short three-month delay in plaintiff's service of its reply to the counterclaims, the District Court did not improvidently exercise its discretion in permitting plaintiff to submit a reply to the counterclaims (see CPLR 3025 [b]; see also CPLR 3012 [d]). Contrary to defendant's contention, the fact that plaintiff did not reply to the counterclaims within 10 days of being served with the answer (see UDCA 907 [a]) did not foreclose plaintiff from subsequently seeking leave to submit a reply asserting affirmative defenses that would otherwise be deemed "waived" under CPLR 3211 (e) (CPLR 3025 [b]; see Nunez v Mousouras, 21 AD3d 355 [2005]; Marks v Macchiarola, 221 AD2d 217 [1995]; see also Arcuri v Ramos, 7 AD3d 741 [2004]).

Accordingly, the District Court's order is affirmed.

Molia, J.P., LaCava and Iannacci, JJ., concur. [*2]
Decision Date: April 08, 2010