Pena-Vazquez v. Beharry

Appellate Division of the Supreme Court of New York

Pena-Vazquez v. Beharry

82 A.D.3d 649, 919 N.Y.2d 336

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

DecidedMarch 29, 2011

StatusPublished

Cited by3 cases

This text of 82 A.D.3d 649 (Pena-Vazquez v. Beharry) 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

Pena-Vazquez v. Beharry, 82 A.D.3d 649, 919 N.Y.2d 336 (N.Y. Ct. App. 2011).

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Opinion

The court providently exercised its discretion in denying plaintiffs’ motion and deeming defendants’ answer timely served nunc pro tunc. Plaintiffs’ acceptance of defendants’ answer, without objection, constituted a waiver of the late service and default (see Ligotti v Wilson, 287 AD2d 550, 551 [2001]). In any event, the settlement discussions between plaintiffs and defendants’ insurer constitute a reasonable excuse for defendants’ delay in answering (see CPLR 3012 [d]; see also Finkelstein v East 65th St. Laundromat, 215 AD2d 178 [1995]). Contrary to plaintiffs’ contention, defendants were not required to demonstrate the existence of a meritorious defense (see Verizon N.Y. Inc. v Case Constr. Co., Inc., 63 AD3d 521 [2009]).

The court providently exercised its discretion in considering defendants’ surreply. The court granted permission for the filing of the surreply, which contained courtesy copies of affidavits that had been filed with the Clerk prior to the motion return date (see generally Barbuto v Winthrop Univ. Hosp., 305 AD2d 623, 623-624 [2003]). Concur — Mazzarelli, J.E, Saxe, Renwick, DeGrasse and Richter, JJ.

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The court providently exercised its discretion in denying plaintiffs’ motion and deeming defendants’ answer timely served nunc pro tunc. Plaintiffs’ acceptance of defendants’ answer, without objection, constituted a waiver of the late service and default (see Ligotti v Wilson, 287 AD2d 550, 551 [2001]). In any event, the settlement discussions between plaintiffs and defendants’ insurer constitute a reasonable excuse for defendants’ delay in answering (see CPLR 3012 [d]; see also Finkelstein v East 65th St. Laundromat, 215 AD2d 178 [1995]). Contrary to plaintiffs’ contention, defendants were not required to demonstrate the existence of a meritorious defense (see Verizon N.Y. Inc. v Case Constr. Co., Inc., 63 AD3d 521 [2009]).

The court providently exercised its discretion in considering defendants’ surreply. The court granted permission for the filing of the surreply, which contained courtesy copies of affidavits that had been filed with the Clerk prior to the motion return date (see generally Barbuto v Winthrop Univ. Hosp., 305 AD2d 623, 623-624 [2003]). Concur — Mazzarelli, J.E, Saxe, Renwick, DeGrasse and Richter, JJ.

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Bluebook (online)

82 A.D.3d 649, 919 N.Y.2d 336, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pena-vazquez-v-beharry-nyappdiv-2011.

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