Circular Symmetry Acupuncture, P.C. v MTA Bus Co. (2026 NY Slip Op 50189(U))

Reported in New York Official Reports at Circular Symmetry Acupuncture, P.C. v MTA Bus Co. (2026 NY Slip Op 50189(U))

The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. Gottlieb Ostrager, LLP (Dominick Giannotto of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Javier Ortiz, J.), entered August 23, 2024. The order, insofar as appealed from, denied plaintiff’s motion to enter a default judgment and granted the branch of defendant’s cross-motion seeking to compel plaintiff to accept its untimely answer.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, the branch of defendant’s cross-motion seeking to compel plaintiff to accept its untimely answer is denied, and plaintiff’s motion for leave to enter a default judgment is granted.

In this action to recover assigned first-party no-fault benefits, defendant was served with the summons and complaint on April 21, 2022, and defendant answered on June 9, 2022. Six days later, plaintiff moved for leave to enter a default judgment pursuant to CPLR 3215 based upon defendant’s untimely answer. Defendant cross-moved for, among other things, an order compelling plaintiff to accept its untimely answer. Plaintiff appeals from so much of an order of the Civil Court (Javier Ortiz, J.) entered August 23, 2024 as denied its motion and granted that branch of defendant’s cross-motion seeking to compel plaintiff to accept its untimely answer.

“In order to be entitled to enter a default judgment upon a defendant’s failure to appear or answer the complaint, a plaintiff must submit evidence of service of the summons and complaint upon the defendant, evidence of a viable cause of action, and evidence of the defendant’s default in appearing or answering (see CPLR 3215 [f]; L & Z Masonry Corp. v Mose, 167 AD3d 728, 729 [2018]; Clarke v Liberty Mut. Fire Ins. Co., 150 AD3d 1192, 1194 [2017]; Deutsche Bank Natl. Trust Co. v Kuldip, 136 AD3d 969, 970 [2016])” (Glanz v Parkway Kosher Caterers, 176 [*2]AD3d 686, 688 [2019]). Here, plaintiff satisfied these requirements.

As plaintiff has established that defendant was in default, defendant was required to come forward with a reasonable excuse for its default and to demonstrate a meritorious defense to the action to avoid the entry of a default judgment (see Juseinoski v Board of Educ. of City of NY, 15 AD3d 353 [2005]). Defendant failed to demonstrate a reasonable excuse for its default because it did not provide an affidavit by anyone with personal knowledge addressing why defendant had failed to timely answer the complaint (see Modern Art Med., P.C. v M.V.A.I.C., 35 Misc 3d 134[A], 2012 NY Slip Op 50759[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). Similarly, defendant’s counsel made no attempt to set forth a reasonable excuse in his affirmation. Defendant contends that plaintiff waived any objection to the answer’s untimeliness in that, while plaintiff alleged that it had mailed a letter to defendant on June 10, 2022 rejecting the answer as untimely, defendant claimed that it had not received that letter until March 2023. Plaintiff, however, moved for leave to enter a default judgment six days after receiving defendant’s untimely answer, thereby expeditiously objecting to defendant’s failure to serve a timely answer and bringing that objection to the attention of defendant and the court. Consequently, plaintiff cannot be deemed to have waived any objection to the untimeliness of the answer (see Katz v Perl, 22 AD3d 806 [2005]; J.O. Dedicated Med., P.C. v State Farm Mut. Auto. Ins. Co., 23 Misc 3d 144[A], 2009 NY Slip Op 51089[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). In view of the foregoing, we need not reach the issue of whether defendant established the existence of a meritorious defense.

Accordingly, the order, insofar as appealed from, is reversed, the branch of defendant’s cross-motion seeking to compel plaintiff to accept its untimely answer is denied, and plaintiff’s motion for leave to enter a default judgment is granted.

TOUSSAINT, P.J., MUNDY and OTTLEY, JJ., concur.