January 31, 2007

Ditmas Acupuncture, P.C. v Kemper Auto & Home Ins. Co. (2007 NY Slip Op 50167(U))

Headnote

The court considered the fact that the defendant served an untimely answer, and the plaintiff sought and obtained a default judgment. The main issue decided was whether the plaintiff waived the untimeliness of the answer by failing to reject it, and whether this precluded the grant of a default judgment. The court held that a plaintiff's retention of an answer without a timely objection constitutes a waiver of objection as to untimeliness, and such a waiver precludes the grant of a default judgment. Therefore, the default judgment entered against the defendant was vacated, and the defendant's motion was granted to that extent. The court also held that to the extent the defendant sought to compel acceptance of the answer, that branch of the defendant's motion was denied as academic.

Reported in New York Official Reports at Ditmas Acupuncture, P.C. v Kemper Auto & Home Ins. Co. (2007 NY Slip Op 50167(U))

Ditmas Acupuncture, P.C. v Kemper Auto & Home Ins. Co. (2007 NY Slip Op 50167(U)) [*1]

Ditmas Acupuncture, P.C. v Kemper Auto & Home Ins. Co.

2007 NY Slip Op 50167(U) [14 Misc 3d 135(A)]

Decided on January 31, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 January 31, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., RIOS and BELEN, JJ
2006-206 K C.

Ditmas Acupuncture, P.C. a/a/o Ulbio Guadamud, Betsy Giler, Respondent,
against
Kemper Auto and Home Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Eileen Nadelson, J.), entered December 19, 2005. The order denied defendant’s motion to vacate the default judgment and to compel plaintiff to accept its late answer.

Order modified by granting defendant’s motion to the extent of vacating the default judgment entered against it; as so modified, 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 thereafter plaintiff sought and obtained a default judgment. Defendant moved to vacate the default judgment and to compel
plaintiff to accept its answer on the ground that plaintiff waived the untimeliness of the answer by failing to reject it. Defendant’s motion was denied and this appeal ensued.

A plaintiff’s retention of an answer without a timely objection constitutes a waiver of objection as to untimeliness and such a waiver precludes the grant of a default judgment (see CPLR 2101 [f]; Celleri v Pabon, 299 AD2d 385 [2002]; Wittlin v Schapiro’s Wine Co., 178 AD2d 160 [1991]; Neurology and Acupuncture Service, P.C. v Lumbermens Mut. Cas. Co., ___ Misc 3d ___, 2006 NY Slip Op ______ [App Term, 2d & 11th Jud Dists]; A.M.B. Med., P.L.L.C. v Lumbermens Mut. Cas. Co., Misc 3d ___, 2006 NY Slip Op [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]). Accordingly, to the extent plaintiff’s application for a default judgment was premised upon plaintiff’s representation that defendant was in default, such representation was incorrect and vacatur of the “default” judgment was warranted without regard to whether defendant demonstrated a meritorious defense (see Avenoso v Avenoso, 266 AD2d 326 [1999]; see generally CPLR 5015 [a] [3]). Since plaintiff waived any objection to the [*2]untimeliness of the answer, plaintiff is deemed to have accepted the answer. Consequently, to the extent that defendant sought to compel acceptance of the answer, that branch of defendant’s motion is denied as academic.

Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: January 31, 2007