Adames v Taveras (2011 NY Slip Op 50327(U))

Adames v Taveras

2011 NY Slip Op 50327(U) [30 Misc 3d 143]

Decided on March 1, 2011

Appellate Term, Second Department

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

This opinion is uncorrected and will not be published in the printed Official Reports.

Carlos C. Adames, Appellant, NO~ 2010-871 Q C

against

Juan Taveras and Anibal Barcacel, Respondents.

Appeal from an order of the Civil Court of the City of New York, Queens County (Anna Culley, J.), entered March 25, 2010. The order granted defendants' motion to compel plaintiff to accept their late answer.

ORDERED that the order is reversed, without costs, and defendants' motion to compel plaintiff to accept their late answer is denied.

In this action to recover damages for personal injuries arising from a motor vehicle accident wherein a vehicle owned by defendant Taveras, and operated by defendant Barcacel, allegedly struck the rear of plaintiff's vehicle, defendants moved to compel plaintiff to accept their late answer. Plaintiff opposed the motion, and noted that
only Barcacel had been served with the summons and complaint. By order dated March 25, 2010, the Civil Court granted the motion. This appeal by plaintiff ensued.

In regard to defendant Barcacel, it is uncontroverted that his answer was late. Contrary to his contention that he was not required to submit an affidavit of merit, the Appellate Division, Second Department, has consistently held that a defendant who fails to answer the complaint and seeks to compel acceptance of a late answer must provide a reasonable excuse for the default and demonstrate a meritorious defense to the action (see Juseinoski v Board of Educ. of City of NY, 15 AD3d 353, 356 [2005]; see also Ryan v Breezy Point Cooperative, Inc., 76 AD3d 523 [2010]; Roccanova v Aussino (USA) Inc., 76 AD3d 522 [2010]). Consequently, as no meritorious defense to the action was demonstrated, the motion, insofar as it was made by Barcacel, to compel plaintiff to accept his late answer should have been denied.

We note that based on plaintiff's assertions, in the Civil Court and in his brief on appeal, that defendant Taveras was not served with the summons and complaint; that the time in which to serve same had expired; and that only Barcacel remained "in the picture," it is clear that plaintiff has abandoned his cause of action against Taveras.