Ching v. Ching

125 A.D.2d 934, 510 N.Y.S.2d 332, 1986 N.Y. App. Div. LEXIS 63110

Opinion

—Order unanimously reversed, on the law, without costs, and defendant’s motion granted. Memorandum: Special Term improperly denied defendant’s motion for leave to serve a late answer to plaintiff’s complaint on the grounds that defendant failed to submit an affidavit of merit.

Defendant was two days late in serving his answer. On this record, it is clear that defendant has established an excuse for his tardiness and that plaintiff has failed to show any prejudice, a conclusion correctly reached by Special Term. However, CPLR 3012 (d) does not require an affidavit of merit as a precondition to obtaining relief under the statute, and the court abused its discretion in denying defendant’s motion (see, Shure v Village of Westhampton Beach, 121 AD2d 887; Continental Cas. Co. v Cozzolino Constr. Corp., 120 AD2d 779; Mufalli v Ford Motor Co., 105 AD2d 642, 644). (Appeal from order of Supreme Court, Oneida County, Tenney, J. — late answer.) Present — Callahan, J. P., Doerr, Green, Lawton and Schnepp, JJ.