Phillips v. League for Hard of Hearing

254 A.D.2d 181, 679 N.Y.S.2d 40, 1998 N.Y. App. Div. LEXIS 11142

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 22, 1998
• Status: Published

Opinion

Order, Supreme Court, New York County (Diane Lebedeff, J.), entered on or about August 29, 1997, which denied plaintiff’s motion for a default judgment, unanimously affirmed, without costs.

Assuming arguendo that defendant’s answer was four days late, plaintiffs retention of defendant’s answer for some six weeks without objection, during which time plaintiff responded to the answer by apparently repleading his causes of action and served a bill of particulars and authorizations for medical and employment records, constituted a waiver of any claim that the answer was not timely served (see, Wittlin v Schapiro’s Wine Co., 178 AD2d 160, 161). Concur — Milonas, J. P., Williams, Andrias and Saxe, JJ.