Duerr v. 1435 Tenants Corp.

Appellate Division of the Supreme Court of New York

Duerr v. 1435 Tenants Corp.

309 A.D.2d 607, 765 N.Y.S.2d 774, 2003 N.Y. App. Div. LEXIS 10689

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

DecidedOctober 16, 2003

StatusPublished

Cited by5 cases

This text of 309 A.D.2d 607 (Duerr v. 1435 Tenants Corp.) 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

Duerr v. 1435 Tenants Corp., 309 A.D.2d 607, 765 N.Y.S.2d 774, 2003 N.Y. App. Div. LEXIS 10689 (N.Y. Ct. App. 2003).

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Opinion

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.

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 plaintiffs 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 [1974], citing CPLR 3026; see also Theodoridis v American Tr. Ins. Co., 210 AD2d 397 [1994]).

Defendant has sufficiently established a meritorious defense by way of the denials and affirmative defenses contained in its answer (see Ellis v Jackson, 267 AD2d 20 [1999]).

[608]*608Finally, 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 plaintiffs opposition to the cross motion until after the return date (see Dinnocenzo v Jordache Enters., 213 AD2d 219 [1995]). We note that the court also accepted a surreply from plaintiff. Concur — Saxe, J.P., Rosenberger, Williams, Marlow and Gonzalez, JJ.

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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.

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 plaintiffs 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 [1974], citing CPLR 3026; see also Theodoridis v American Tr. Ins. Co., 210 AD2d 397 [1994]).

Defendant has sufficiently established a meritorious defense by way of the denials and affirmative defenses contained in its answer (see Ellis v Jackson, 267 AD2d 20 [1999]).

[608]*608Finally, 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 plaintiffs opposition to the cross motion until after the return date (see Dinnocenzo v Jordache Enters., 213 AD2d 219 [1995]). We note that the court also accepted a surreply from plaintiff. Concur — Saxe, J.P., Rosenberger, Williams, Marlow and Gonzalez, JJ.

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Bluebook (online)

309 A.D.2d 607, 765 N.Y.S.2d 774, 2003 N.Y. App. Div. LEXIS 10689, Counsel Stack Legal Research, https://law.counselstack.com/opinion/duerr-v-1435-tenants-corp-nyappdiv-2003.

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