Rossini Excavating Corp. v. Shelter Rock Builders, LLC

89 A.D.3d 467, 931 N.Y.2d 874

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 3, 2011
• Status: Published

Opinion

There was no default in answering. Plaintiff waived its objections to the untimeliness of defendants’ answer by serving a reply to the counterclaims after rejecting the late answer and moving for a default judgment (cf. Oparaji v Duran, 18 AD3d 725 [2005]). In view of the foregoing, whether defendant demonstrated the grounds required for vacatur of a default and the other issues arising from the subsequent chain of events are academic. Concur — Mazzarelli, J.P, Saxe, Acosta, DeGrasse and Manzanet-Daniels, JJ.