Neurology & Acupuncture Serv., P.C. v Lumbermens Mut. Cas. Co. (2006 NY Slip Op 52517(U))

Neurology & Acupuncture Serv., P.C. v Lumbermens Mut. Cas. Co.

2006 NY Slip Op 52517(U) [14 Misc 3d 129(A)]

Decided on December 28, 2006

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected in part through November 4, 2011; it will not be published in the printed Official Reports.

Neurology and Acupuncture Service, P.C., a/a/o Luis Espinoza, Carmen Espinoza and Fernando Rincon, Respondent,

against

Lumbermens Mutual Casualty Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered November 1, 2005. The order denied defendant's motion to vacate a default judgment entered against it and to compel acceptance of defendant's answer.

Order modified by granting defendant's motion to the extent of vacating the default judgment entered against it; as so modified, affirmed without costs.

In this action to recover assigned first-party no-fault benefits, it is undisputed that defendant served its answer late and that thereafter plaintiff sought and obtained a
default judgment. Defendant, arguing that plaintiff waived the untimeliness of the answer by failing to reject it, moved to, inter alia, vacate the default judgment and compel acceptance of the answer. Defendant's motion was denied and this appeal ensued.

The record unequivocally establishes that plaintiff received defendant's answer on January 10, 2005 and plaintiff proffered no proof that it rejected the answer within the statutory time to do so (see CPLR 2101 [f]; Celleri v Pabon, 299 AD2d 385 [2002]). Indeed, the record further reflects that plaintiff's application for a default judgment was submitted to the court after the statutory time to reject the answer had expired. Consequently, as defendant correctly contends, plaintiff's retention of the answer without a timely objection constituted a waiver of objection as to untimeliness and such a waiver precluded the grant of a default judgment (see Celleri v Pabon, 299 AD2d 385, supra; Wittlin v Schapiro's Wine Co., 178 AD2d 160 [1991]; Abernathy v Ali, 3 Misc 3d 136[A], 2004 NY Slip Op 50509[U] [App Term, 2d & 11th Jud Dists]). In light of the foregoing, to the extent plaintiff's application for a default judgment was premised upon plaintiff's representation that defendant was in default, such a representation was incorrect. As a result, vacatur of the "default" judgment is warranted without regard to [*2]
whether defendant has demonstrated a meritorious defense (see Avenoso v Avenoso, 266 AD2d 326 [1999]; see generally CPLR 5015 [a] [3]).

Inasmuch as plaintiff waived any objection to the untimeliness of the answer, plaintiff accepted the answer. Consequently, the branch of defendant's motion which sought to compel acceptance of the answer has been rendered academic.