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Adames v. Taveras

Appellate Term of the Supreme Court of New York, Second Department
Mar 1, 2011
2011 N.Y. Slip Op. 50327 (N.Y. App. Term 2011)

Opinion

2010-871 Q C.

Decided March 1, 2011.

Appeal from an order of the Civil Court of the City of New York, Queens County (Anna Culley, J.), entered March 25, 2010. The order granted defendants' motion to compel plaintiff to accept their late answer.

ORDERED that the order is reversed, without costs, and defendants' motion to compel plaintiff to accept their late answer is denied.

PRESENT: PESCE, P.J., GOLIA and STEINHARDT, JJ.


In this action to recover damages for personal injuries arising from a motor vehicle accident wherein a vehicle owned by defendant Taveras, and operated by defendant Barcacel, allegedly struck the rear of plaintiff's vehicle, defendants moved to compel plaintiff to accept their late answer. Plaintiff opposed the motion, and noted that only Barcacel had been served with the summons and complaint. By order dated March 25, 2010, the Civil Court granted the motion. This appeal by plaintiff ensued.

In regard to defendant Barcacel, it is uncontroverted that his answer was late. Contrary to his contention that he was not required to submit an affidavit of merit, the Appellate Division, Second Department, has consistently held that a defendant who fails to answer the complaint and seeks to compel acceptance of a late answer must provide a reasonable excuse for the default and demonstrate a meritorious defense to the action ( see Juseinoski v Board of Educ. of City of NY, 15 AD3d 353, 356; see also Ryan v Breezy Point Cooperative, Inc., 76 AD3d 523; Roccanova v Aussino (USA) Inc., 76 AD3d 522). Consequently, as no meritorious defense to the action was demonstrated, the motion, insofar as it was made by Barcacel, to compel plaintiff to accept his late answer should have been denied.

We note that based on plaintiff's assertions, in the Civil Court and in his brief on appeal, that defendant Taveras was not served with the summons and complaint; that the time in which to serve same had expired; and that only Barcacel remained "in the picture," it is clear that plaintiff has abandoned his cause of action against Taveras.

Pesce, P.J., Golia and Steinhardt, JJ., concur


Summaries of

Adames v. Taveras

Appellate Term of the Supreme Court of New York, Second Department
Mar 1, 2011
2011 N.Y. Slip Op. 50327 (N.Y. App. Term 2011)
Case details for

Adames v. Taveras

Case Details

Full title:CARLOS C. ADAMES, Appellant, v. JUAN TAVERAS AND ANIBAL BARCACEL…

Court:Appellate Term of the Supreme Court of New York, Second Department

Date published: Mar 1, 2011

Citations

2011 N.Y. Slip Op. 50327 (N.Y. App. Term 2011)