Motion sequence nos. 001 and 002 are consolidated for disposition herein.

This special proceeding arises out of requests for transcripts of proceedings before the New York City Parking Violations Bureau. In lieu of answering the petition, respondents' cross-move in motion sequence no. 001 for an order, pursuant to CPLR § 3211 (a) (3), dismissing the petition on the ground that petitioner lacks standing. Petitioner cross-moves, pursuant CPLR § 3215, for leave to enter a default judgment against respondents. In motion sequence no. 002, [*2]petitioner moves, pursuant to CPLR § 3025, for leave to serve a second amended verified petition and to compel respondents to accept service thereof. For the reasons set forth below, respondents' cross-motion for dismissal and petitioner's cross-motion for a default judgment are denied, and petitioner's motion, improperly denominated a "cross motion," to amend the petition is granted.

Turning first to petitioner's cross-motion for a default judgment, CPLR § 3215 (a) reads, in part, that "[w]hen a defendant has failed to appear, plead or proceed to trial . . . the plaintiff may seek a default judgment against him [or her]." The statute applies equally to special proceedings brought under CPLR article 78 (see Matter of Citron v Curiale, 273 AD2d 183, 184 [1st Dept 2000], lv denied 95 NY2d 766 [2000]). Instead of serving an answer to the petition, respondents cross-moved for dismissal. Where a party serves a pre-answer motion for relief under CPLR § 3211 (a) or (b), CPLR § 3211 (f) operates to extend the moving party's time to serve a responsive pleading "until ten days after service of notice of entry of the order." Thus, absent a determination on respondents' motion to dismiss, their time to answer the petition has not run. Furthermore, respondents submit, and petitioner does not contest, that petitioner had consented to numerous extensions of time for respondents to answer the petition (affirmation in opposition of Amy J. Weinblatt, ¶¶ 4-5). In addition, it is undisputed that the parties have been engaged in ongoing settlement negotiations (oral argument 6/28/2017 tr at 5), thereby negating any inference of a willful default by respondents (see Gluck v McDonough, 139 AD3d 628, 629 [1st Dept 2016]). Likewise, the aforesaid discussions, along with the numerous appearances before the court, constitute an adequate excuse for petitioner's failure to move for a default within one year of service of the petition (see Street Snacks, LLC v Bridge Assoc. of Soho, Inc., 156 AD3d 556, 557 [1st Dept 2017]).

With regards to petitioner's motion for leave to serve a second amended verified petition, it is well settled that a motion for leave to amend the pleadings should be freely granted unless there is prejudice or surprise from the delay or if the amendment is "palpably insufficient or patently devoid of merit" (see JPMorgan Chase Bank, N.A. v Low Cost Bearings NY Inc., 107 AD3d 643, 644 [1st Dept 2013], quoting MBIA Ins. Corp. v Greystone & Co., Inc., 74 AD3d 499, 499 [1st Dept 2010]). The court must examine the sufficiency of the merits of the proposed amendment and is not required to accept a party's allegations as true (see Bag Bag v Alcobi, 129 AD3d 649, 649 [1st Dept 2015]). A party moving to amend its pleadings need not prove the facts alleged (see Daniels v Empire-Orr, Inc., 151 AD2d 370, 371 [1st Dept 1989]), but must tender an affidavit of merit or an offer of evidence similar to that used to support a motion for summary judgment (see Bag Bag, 129 AD3d at 649 [1st Dept 2016]). A party opposing the motion bears a heavy burden of showing "prejudice or surprise resulting directly from the delay" (McGhee v Odell, 96 AD3d 449, 450 [1st Dept 2012] [internal quotation marks and citation omitted]), or demonstrating that the facts as alleged are "obviously unreliable or insufficient to support the amendment" (see Peach Parking Corp. v 346 W. 40th St., LLC, 42 AD3d 82, 86 [1st Dept 2007], citing Daniels, 151 AD3d at 371]).

As an initial matter, service of an amended petition supersedes the original (see Matter of Maddock E. (Luis E.), 138 AD3d 559, 559 [1st Dept 2016]). Thus, petitioner would not have been entitled to entry of a default judgment against respondents on this ground. Additionally, service of a pre-answer motion to dismiss not only extends a party's time to answer but also the complaining party's time to amend its pleading as of right (see Re-Poly Mfg. Corp. v Dragonides, 109 AD3d 532, 534-535 [2d Dept 2013]; STS Mgt. Dev. v New York State Dept. of [*3]Taxation & Fin., 254 AD2d 409, 410 [2d Dept 1998]; Polish Am. Immigration Relief Comm. v Relax, 172 AD2d 374, 375 [1st Dept 1991]). Hence, absent a determination on respondents' pre-answer motion, petitioner may amend its pleading without seeking leave of court. Therefore, respondents' cross-motion to dismiss must be denied as moot, irrespective of its arguments that petitioner lacked standing on the original petition (see affirmation in opposition of Kerri A. Devine, ¶¶ 5-6). Moreover, respondents agreed to answer an amended verified petition that had been served (oral argument 6/28/2017 tr at 15-16), which asserted additional facts and includes verifications signed by the proposed new petitioners allegedly aggrieved by respondents' actions. To the extent petitioner wishes to add Sysco Metro NY, LLC as a petitioner, that facet of the motion is denied in the absence of a verified statement signed by an authorized representative for that entity.

Accordingly, it is

ORDERED that respondents' cross-motion for dismissal of the petition and this proceeding (motion sequence no. 001) is denied as moot; and it is further

ORDERED that petitioner's cross-motion for leave to enter a default judgment against respondents is denied; and it further

ORDERED that petitioner's motion for leave to serve a second amended verified petition and to compel respondents to accept service thereof (motion sequence no. 002) is granted to the extent noted above; and it is further

ORDERED that the second amended petition in the form submitted with petitioner's motion shall be deemed served upon service of a copy of this order with notice of entry upon all parties who have appeared in this action; and it is further

ORDERED that the action shall bear the following caption:

And it is further

ORDERED that respondents shall each serve an answer to the second amended verified petition or otherwise respond thereto within 20 days from the date of said service; and it is further

ORDERED that counsel for the moving party shall serve a copy of this order with notice of entry upon the County Clerk (60 Centre Street, Room 141B) and the Clerk of the General Clerk's Office (60 Centre Street, Room 119), who are directed to mark the court's records to reflect the parties being added pursuant hereto.