Opinion
November 12, 2002.
In an action to recover damages for personal injuries, the defendant appeals from (1) an order of the Supreme Court, Kings County (Vaughan, J.), dated March 13, 2002, which denied his motion to compel the plaintiff to accept his late answer, and (2) an order of the same court dated April 24, 2002, which granted the plaintiffs motion for leave to enter judgment on the issue of liability upon the defendant's default in answering, and for an inquest on the issue of damages.
Ordered that the orders are affirmed, with one bill of costs.
The defendant contends that the plaintiff waived the issue of the late service of the answer on the ground that the plaintiff did not object within the statutory time frame (see CPLR 2101 [f]; Ligotti v. Wilson, 287 A.D.2d 550; Nassau County v. Incorporated Vil. of Roslyn, 182 A.D.2d 678; Diamadopolis v. Balfour, 152 A.D.2d 532). However, the defendant failed to submit sufficient proof to establish a presumption that he served the answer on July 26, 2001 (see Kihl v. Pfeffer, 94 N.Y.2d 118; Engel v. Lichterman, 62 N.Y.2d 943, 944-945; Dixon v. Motor Veh. Acc. Indem. Corp., 224 A.D.2d 382, 383; Matter of T.E.A. Mar. Automotive Corp. v. Scaduto, 181 A.D.2d 776, 779), so as to render the plaintiff's August 20, 2001, objection untimely.
Furthermore, the plaintiff submitted proof of service of the summons and the complaint, and an affidavit of the facts constituting the claim (see CPLR 3215 [f]). Accordingly, the Supreme Court correctly granted the plaintiff leave to enter judgment on the issue of liability in his favor.
Santucci, J.P., Smith, Goldstein, H. Miller and Mastro, JJ., concur.