Opinion
2003-761 QC.
Decided May 26, 2004.
Appeal by plaintiff from an order of the Civil Court, Queens County (K. Kerrigan, J.), entered March 7, 2003, granting defendant's motion to vacate a default judgment and permitting him to file a late answer.
Order unanimously affirmed without costs.
PRESENT: PESCE, P.J., PATTERSON and GOLIA, JJ.
Defendant moved to vacate a default judgment, inter alia, on the ground that he never received notice either of plaintiff's alleged rejection of his answer or the subsequent proceedings to obtain the default judgment. The answer, concededly untimely, interposed defenses to the action based on plaintiff's defective service of the summons and complaint, and plaintiff's comparative negligence. In opposition, plaintiff failed to submit proof in admissible form that she transmitted to defendant her letter rejecting defendant's answer as untimely. In the absence of such proof, plaintiff is deemed to have waived any objection to the untimeliness ( Nassau County v. Incorporated Vil. of Roslyn, 182 AD2d 678, 679; Minogue v. Monette, 138 AD2d 851, 852), which waiver precluded the subsequent grant of a default judgment ( Wittlin v. Schapiro's Wine Co., 178 AD2d 160, 161; Matter of Romano v. Ziegner, 99 AD2d 512). Accordingly, insofar as the order below granted defendant's motion to vacate the default judgment, that determination should not be disturbed. While the order further required defendant to serve a new answer and precluded defendant from including therein a defense based on defective service of the summons and complaint, in light of defendant's failure to cross-appeal from those determinations, we do not address the propriety thereof.