In this contract action, the defendant Razzano Homes & Remodelers, now moves pursuant to CPLR 3012(d) for an Order to compel the plaintiff Paula DeCola to accept its late filed Answer and Counterclaims. The plaintiff opposes and cross-moves pursuant to CPLR 3125 for an Order granting her a default judgment.

In her 22 page complaint, the plaintiff asserts five causes of action, which include breach of contract, conversion, unjust enrichment, fraud, [*2]violation of General Business Law 349, and an accounting by the defendant. The dispute between the parties arose over a contract the parties entered into for the remodeling and addition to the plaintiff's home.

According to defendant's motion, the plaintiff served the summons and verified complaint on Hodson Russ, LLP, (Scott Paton, Esq.)^[FN1] who had represented the defendant on a number of previous occasions. Attorney Paton obtained an extension to file an Answer from the plaintiff's counsel until the middle of November, 2021. When it was determined that the defendant would be represented by Mario Cometti, Esq., Attorney Paton notified the plaintiff's counsel. Attorney Cometti, according to his affidavit, likewise notified the plaintiff's counsel of his appearance and received no communication that the extension to serve an Answer was withdrawn. After failing at his attempts to contact plaintiff's counsel, Attorney Cometti served the defendant's Answer with Counterclaims on November 12, 2021, only to have it rejected by the plaintiff on November 16, 2021. Plaintiff objected on the basis that the Answer was untimely, and that the Answer was improperly verified by defendant's counsel (not by an officer of the corporation (CPLR 3020(d)(1), and that both the defendant its counsel have their offices in the same county (CPLR 3020(3).

For the reasons that follow the Court grants the defendant's application to compel the plaintiff to accept the defendant's Verified Answer and Counterclaims, and denies the plaintiff's cross motion for a default judgment.

Turning first to the plaintiff's rejection of defendant's Answer because of an improper verification, due diligence requires that rejection of an improperly verified answer be made immediately, or at least within 24 hours (CPLR 3022; Hunter v Ego Lab, Inc., 301 AD2d 806 [3d Dept 2003]). Here, plaintiff received the Verified Answer with Counterclaims on November 12, 2021, and did not reject it until November 16, 2021. Thus, the plaintiff's failure to give the required prompt notice is a waiver of any defect in that verification (Clark v State of New York , 302 AD2d 942, 944 [4th Dept 2003], citations omitted).

On whether to grant the defendant's application to compel, the Court is mindful that it "possesses the discretion to permit a late service of an answer upon a proper showing of a reasonable excuse for delay or default...keeping in mind public policy favors the resolution of cases on the merits...(including consideration a) relatively brief delay...(and where) [*3]the defendant's verified answer provide a sufficiently meritorious defense to plaintiff's complaint...and (there is) absence of proof that the default was willful or that plaintiff was prejudiced by the late answer" (Watson v Pollacchi, 32 AD3d 565, 565 [3d Dept 2006], internal quotations and citations omitted); Baldwin Rte. 6, LLC v Bernad Creations, Ltd. 158 AD3d 659 [2d Dept 2018]).

Albeit the plaintiff disputes that an extension was granted, the defendant has produced the Affidavit of Attorney Paton — which reflects that Paton had every reason to believe that he was extended that courtesy, and is also supported by an offered copy of November 2, 2021 email from Paton to plaintiff's counsel which includes "I appreciate your flexibility with respect answering the complaint, and I assume the same courtesies will be extended to Mario (Attorney Cometti)."

In the Court's view, the defendant acted reasonably under the circumstance in relying upon the assurances given to Attorney Patton in permitting service of a late answer (Pennymac Corp. v Shelby, 190 AD3d 759, 760-761 [2d Dept 2019], citations omitted). It was also certainly reasonable for Attorney Cometti to believe that the same assurance and extension would apply to his representation of the defendant as well — especially in light of the plaintiff's counsel's timely failure to reply otherwise.

Further, in the context of what the Court understands, as represented by Attorney Paton, of lengthy communications towards an attempting settlement of the controversy, and that plaintiff's counsel agreed to extend the defendant's time to answer (albeit without a specific date), the involved delay of 22 days is relatively brief and "neither intentional nor serious enough to prejudice the plaintiff's prosecution of (her) lawsuit" (Dilorio v Antonelli, 240 AD2d 537, 537 [2d Dept 1997]).

Turning to defendant's verified answer (even if the Court allowed the plaintiff's objection that it was not properly verified), for purposes of demonstrating that the defendant has a potentially meritorious defense, the pleading need not be verified (Harris v City of New York, 30 AD3d 461, 465 [2d Dept 2006]). Further, the defendant supported its application with the affidavit of Daniel Razzano, who states he is the "principle (sic) and owner" of the defendant corporation.

On an application to compel acceptance of a late answer, the litmus test of a meritorious defense is not the validity of the defenses raised "as a matter of law...but only...that the defense is potentially meritorious" (Corvera v Prime Source Dev., LLC, 172 AD3d 1161, 1163 [2d Dept 2019], citations omitted). In its Answer (and also set out in defendant's Affidavit of Merit), the defendant not only denies the plaintiff's allegations, but also alleges counterclaims, including that the plaintiff breached parties' [*4]contract "by signing another agreement to purchase a home located at a location other than the subject property" and for quantum meruit because it "provided valuable services to Plaintiff and obtained materials and supplies at the request fo (sic) Plaintiff...". In sum, on this record the defendant has sufficiently established a potentially meritorious defense.

Lastly, beyond the damages claims set out in her complaint, the plaintiff now offers no proof of how she is prejudiced as a result of the defendant's late answer — other than her inability to take a default judgment, which is in the Court's view insufficient to deny the defendant's motion to compel plaintiff's acceptance of the late answer.

Having determined that defendant is entitled to an order compelling plaintiff to accept its late answer — and also mindful that the defendant was required to make the same showing of a potentially meritorious defense to oppose the plaintiff's default application (Corvera, 172 AD3d at 1163) — the plaintiff's motion for a default judgment is denied.

Even if the Court did not compel the acceptance of the late answer, the Court would deny the plaintiff's application for a default judgment.

On a motion for a default judgment, the "legal conclusions to be drawn from the applicant's complaint and factual allegations are reserved for the court's determination, and the court retains the discretionary obligation to determine whether the applicant has met the burden of stating a prima facie cause of action... (and the) lack of opposition does not negate this judicial function" (Matter of Dyno v Rose, 260 AD2d 694, 698 [3d Dept 1999], citations omitted).

Albeit plaintiff's verified complaint is lengthy and detailed, it does raise questions, including consideration of the attached exhibits (defendant's invoices), which would need to be further addressed in order for the Court to make the required reasoned determination on the law and the facts (Green v Dolphy Constr. Co, 187 AD2d 635, 636 [2d Dept 1992]; Celnick v Freitag, 242 AD2d 436[1st Dept1997]).

Accordingly, it hereby

ORDERED, that the defendant's motion that the plaintiff be compelled to accept its Verified Answer filed as of today's date is granted in its entirety; and it is further

ORDERED, that the plaintiff accept the defendant's Verified Answer filed on November 12, 2021, with the date of acceptance being the date of the Court's filing of this Decision and Order with NYSCEF; and it is further

ORDERED, that the plaintiff's motion for a default judgment against the defendant is denied in its entirety; and it is further

ORDERED, that a preliminary conference in this matter is scheduled for March 21, 2022, at 1:00 p.m., to be conducted by Microsoft Teams.

This constitutes the Decision and Order of the Court. This original Decision and Order is filed by the Court with NYSCEF, which pursuant to Uniform Rule 202.5-b(d)(6) constitutes filing and entry. Counsel for the defendant is not relieved of the provisions of CPLR 2220 with regard to Notice of Entry.

1.Documents No. "1" through "22"