Dime Savings Bank v. Pine Drive Associates, Inc.

28 Misc. 2d 648, 212 N.Y.S.2d 111, 1961 N.Y. Misc. LEXIS 3321

• Court: New York Supreme Court
• Decided: February 27, 1961
• Status: Published

Opinion

Mario Pittoni, J.

Motion 11 for an order directing the plaintiff to accept the answer of the defendant Preferred Transmix Concrete, Inc.”, is denied.

The movant was served with the summons and complaint on January 9, 1961. The answer was mailed on February 3, 1961, received and returned on February 6. 1961. No affidavit of merits is submitted, nor is any reasonable excuse given for the failure to serve the answer within 20 days after service of the complaint.

The observation may be made that the movant, even though it has defaulted in answering in the foreclosure action, is not precluded from proving its lien in a surplus money proceeding (Matter of Lobbett v. Galpin, 228 App. Div. 65; Rules Civ. Prac., rules 262, 263).