FILING A LATE ANSWER

This case was an appeal from Supreme Court, Putnam County, where ostensibly the downstate practice of granting extensions is not followed.

Baldwin Rte. 6, LLC v Bernad Creations, Ltd., 2018 NY Slip Op 01039, Decided on February 14, 2018, Appellate Division, Second Department:


"In December 2014, the plaintiff commenced this action to recover damages for breach of contract. The defendant served its answer on January 22, 2015, which the parties agree was two days after the statutory deadline to answer had expired. After the plaintiff's counsel rejected the answer as untimely, the defendant moved pursuant to CPLR 2004 to compel the plaintiff to accept its late answer. The Supreme Court denied the defendant's motion. We reverse.

CPLR 2004 provides that, "[e]xcept where otherwise expressly prescribed by law, the court may extend the time fixed by any statute, rule or order for doing any act, upon such terms as may be just and upon good cause shown, whether the application for extension is made before or after the expiration of the time fixed." Given the strong public policy favoring the resolution of cases on the merits, "the Supreme Court may compel a plaintiff to accept an untimely answer (see CPLR 2004, 3012[d]) where the record demonstrates that there was only a short delay in appearing or answering the complaint, that there was no willfulness on the part of the defendant, that there would be no prejudice to the plaintiff, and that a potentially meritorious defense exists" (Yongjie Xu v JJW Enters., Inc., 149 AD3d 1146, 1147; see Tewari v Tsoutsouras, 75 NY2d 1, 12; Calderone v Molloy Coll., 153 AD3d 491). Here, in light of the defendant's brief and unintentional delay in serving its answer, the lack of prejudice to the plaintiff, and the existence of a potentially meritorious defense, the Supreme Court improvidently exercised its discretion in denying the defendant's motion pursuant to CPLR 2004 to compel the plaintiff to accept its late answer (see Yongjie Xu v JJW Enters., Inc., 149 AD3d at 1147; Roy v 81E98th KH Gym, LLC, 142 AD3d 985, 986; Spence v Davis, 139 AD3d 703, 704; Klein v Yeshiva M'kor Chaim, 116 AD3d 672; see also Calderone v Molloy Coll., 153 AD3d at 491)."