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Duerr v. 1435 Tenants Corp.

Appellate Division of the Supreme Court of New York, First Department
Oct 16, 2003
309 A.D.2d 607 (N.Y. App. Div. 2003)

Opinion

1805N

October 16, 2003.

Order, Supreme Court, Bronx County (Douglas McKeon, J.), entered July 1, 2002, which denied plaintiff's motion for a default judgment and granted defendant's cross motion to compel plaintiff to accept defendant's answer as timely, unanimously affirmed, with costs.

Ephrem Wertenteil, for plaintiff-appellant.

Meredith Drucker, for defendant-respondent.

Before: Saxe, J.P., Rosenberger, Williams, Marlow, Gonzalez, JJ.


The court properly exercised its discretion in granting defendant's cross motion, given the relatively short delay in serving the pleading after the extension deadline and the lack of any prejudice to plaintiff. Moreover, as the motion court pointed out, defendant's counsel made good faith efforts to resolve the matter without court intervention.

Defendant does not take issue with plaintiff's assertion that the verification of the answer is defective, since the affiant is not an officer of the party defendant (CPLR 3020[d][1]) and since the affiant, representing a nonparty, did not "set forth in the affidavit the grounds of his belief as to all matters not stated upon his knowledge and the reason why it is not made by the party" (CPLR 3021). However, since plaintiff does not claim that she was prejudiced by the submission of the defective verification, the defect should be ignored (see State of New York v. McMahon, 78 Misc.2d 388, 389, citing CPLR 3026; see also Theodoridis v. Am. Tr. Ins. Co., 210 A.D.2d 397).

Defendant has sufficiently established a meritorious defense by way of the denials and affirmative defenses contained in its answer (see Ellis v. Jackson, 267 A.D.2d 20).

Finally, the court properly exercised its discretion in accepting defendant's reply affirmation (with the attached answer verification) after the return date for the motion and cross motion since defendant's counsel did not receive plaintiff's opposition to the cross motion until after the return date (see Dinnocenzo v. Jordache Enters., 213 A.D.2d 219). We note that the court also accepted a sur-reply from plaintiff.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.


Summaries of

Duerr v. 1435 Tenants Corp.

Appellate Division of the Supreme Court of New York, First Department
Oct 16, 2003
309 A.D.2d 607 (N.Y. App. Div. 2003)
Case details for

Duerr v. 1435 Tenants Corp.

Case Details

Full title:Leah Duerr, Plaintiff-Appellant, v. 1435 Tenants Corp.…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Oct 16, 2003

Citations

309 A.D.2d 607 (N.Y. App. Div. 2003)
765 N.Y.S.2d 774

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