Marin Construction Corp. v. 62 Holding Corp.

87 A.D.2d 547, 448 N.Y.S.2d 175, 1982 N.Y. App. Div. LEXIS 15785

Opinion

— Order of the Supreme Court, Bronx County (Kent, J.), entered August 31, 1981, which granted defendant a default judgment on its counterclaims and severed them, setting them down for an inquest, is reversed, to the extent appealed from, without costs, on the law, the facts and in the exercise of discretion, and the motion denied. The court’s decision was specifically based upon a two-day lateness by plaintiff in replying to defendant’s counterclaims. In view of the desirability of having cases determined on their merits, such a strict, overly technical application of statutory time periods is misplaced where no prejudice has been demonstrated and where defendant’s acceptance and retention of plaintiff’s reply for approximately 10 months prior to its motion for summary judgment can be deemed to constitute a waiver of its right to complain about the late service. (Nagel v Sonnenberg, 74 AD2d 565; Maunz v Laube, 60 AD2d 970.) Concur —• Murphy, P. J., Sandler, Lupiano, Bloom and Milonas, JJ.