Ching v. Ching

Appellate Division of the Supreme Court of New York

Ching v. Ching

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

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 19, 1986

StatusPublished

Cited by7 cases

This text of 125 A.D.2d 934 (Ching v. Ching) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ching v. Ching, 125 A.D.2d 934, 510 N.Y.S.2d 332, 1986 N.Y. App. Div. LEXIS 63110 (N.Y. Ct. App. 1986).

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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; [935]*935Mufalli 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.

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—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; [935]*935Mufalli 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.

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Bluebook (online)

125 A.D.2d 934, 510 N.Y.S.2d 332, 1986 N.Y. App. Div. LEXIS 63110, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ching-v-ching-nyappdiv-1986.

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