New York's Appellate Division, Second Department reversed a trial court decision that granted a defendant's motion to compel acceptance of a late answer. The facts on appeal entailed plaintiff completing service on November 27, 2018 and defendant answering 43 days later on January 9, 2019. Generally, answers are due within 20 or 30 days after service is complete depending on the service method. Plaintiff alleged a negligence cause of action stemming from a sidewalk fall. She timely sued in Kings County one day before the statute of limitations expired. Goldstein v. Ilaz, 2022 NY Slip Op 04154 (2d Dept. 2022).
Defendant's counsel argued that defendant's insurance carrier retained counsel on January 4, 2019 and that the carrier caused the delay. The Appellate Division rejected that "bare allegation" as insufficient. To compel a party to accept a late answer, a movant must show a reasonable excuse for the delay and a potentially meritorious defense. A reasonable excuse falls within the Supreme Court's discretion. The Appellate Division ruled that the Supreme Court improvidently exercised its discretion in accepting defendant's excuse.
This decision offers several key takeaways. First, litigants would be well-advised to provide more than an attorney affirmation if a late answer motion situation arises. New York courts often hold that an attorney affirmation not based upon personal knowledge is of no probative or evidentiary significance. Rather than an attorney affirmation devoid of personal knowledge, a detailed affidavit from a person with knowledge of what transpired is preferable, particularly someone not associated with the moving counsel's office.
Second, litigants should scrutinize the method a party used to serve pleadings and the corresponding time to answer. Parties often believe service is complete on the day a person receives legal papers. While true for personal service, in Goldstein, plaintiff served defendant by leaving papers with defendant's wife and mailing a copy thereafter. In that situation, service is not complete until ten days after plaintiff files an affidavit of service of the mailing per CPLR § 308(2). The answer is due thirty days after service is complete per CPLR § 3012(c). Defendant did not raise those facts in the underlying motion. Thus, the Appellate Division did not consider them on appeal.
Third, parties should consider the often-handy CPLR § 2004, entitled "extensions of time generally." That device permits courts to extend deadlines upon such terms as may be just and upon good cause shown. If a party cannot obtain an answer extension from an adversary, then moving for an extension under that statute may provide an additional avenue to obtain the extension from the court.
Overall, Goldstein illustrates the importance of timely answering, scrutinizing the service method and applicable rules, and the potential consequences for not doing so.
Read the full decision here.
Summer associate Nicholas Ogam contributed to this article.
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