delay and a meritorious defense in New York

2005Moreover, the affirmation of the defendant’s president, submitted by the defendant for the first time as a sur-reply affirmation in an effort to demonstrate a reasonable excuse for the delay and a meritorious defense, was not authorized in form or procedure and, thus, was without probative value (see CPLR 2214; Slavenburg Corp. v Opus Apparel, 53 NY2d 799 , 801 n [1981]; Mu Ying Zhu v Zhi Rong Lin, 1 AD3d 416 , 417 [2003]; Pisacreta v Minniti, 265 AD2d 540 [1999]; United Talmudical Academy of Kiryas Joel v Khal Bais Halevi Religious Corp., 232 AD2d 547 [1996]; Scherrer v Time Equities, 218 AD2

1999Because the individual defendant is a party to the action, his submission of an affirmation instead of an affidavit was improper, and its contents should have been disregarded by the Supreme Court, thereby rendering the opposing papers insufficient to defeat the plaintiff’s motion (see, CPLR 2106; Slavenburg Corp. v Opus Apparel, 53 NY2d 799 ; Lauer v Rapp, 190 AD2d 778 ).

2004Corp. v Rogers & Wells, 64 NY2d 904 [1985].) Nor does this court find a 21/2-month delay a relatively brief delay so as to obviate the duty to demonstrate a reasonable excuse for the delay and a meritorious claim.

2004Corp. v Rogers & Wells , 64 NY2d 904 [1985].) Nor does this court find a 2½-month delay a relatively brief delay so as to obviate the duty to demonstrate a reasonable excuse for the delay and a meritorious claim. ( Cf .

1990(See, Barasch v Micucci, 49 NY2d 594, 599 .) To avoid dismissal, the plaintiff must demonstrate a reasonable excuse for the delay and a meritorious claim against the defendant.

1981Although plaintiff’s complaint was served 57 days beyond the statutory time limitation, the record demonstrates both a reasonable excuse for the delay and a meritorious claim (see Barasch v Micucci, 49 NY2d 594 ).

1986While CPLR 2005 provides that, "[u]pon an application satisfying the requirements of subdivision (d) of section 3012 or subdivision (a) of rule 5015, the court shall not, as a matter of law, be precluded from exercising its discretion in the interest of justice to excuse delay or default resulting from law office failure”, there must still be a reasonable excuse for the delay and a meritorious claim (see, Fidelity & Deposit Co. v Andersen & Co., 60 NY2d 693 ; Heffhey v Brookdale Hosp.

1984Under the present statutory standard (see CPLR 2005; CPLR 3012, subd [d]; added L 1983, ch 318), a defendant seeking to excuse a default in answering must establish a reasonable excuse for the delay and a meritorious defense (Fidelity & Deposit Co. v Andersen & Co., 60 NY2d 693, 695 ; Weber v Victory Mem.

2011In Miceli ( 3 NY3d 725 [2004]), where the moving party’s attorney failed to file a summary judgment motion within 120 days of the filing of a note of issue and did not demonstrate good cause for the delay, Supreme Court erred in granting summary judgment to the movant (see also Brill, 2 NY3d 648 [2004] [same; clarifying that good cause means a reasonable excuse for the delay in making the motion]).

2011In Miceli ( 3 NY3d 725 [2004]), where the moving party’s attorney failed to file a summary judgment motion within 120 days of the filing of a note of issue and did not demonstrate good cause for the delay, Supreme Court erred in granting summary judgment to the movant (see also Brill, 2 NY3d 648 [2004] [same; clarifying that good cause means a reasonable excuse for the delay in making the motion]).

2011In Gibbs ( 16 NY3d 74 [2010]), where plaintiffs counsel violated a conditional preclusion order by failing to supply a bill of particulars and did not establish good cause for the delay and a meritorious claim, we held that the trial court abused its discretion in failing to order preclusion.

2005Moreover, the affirmation of the defendant’s president, submitted by the defendant for the first time as a sur-reply affirmation in an effort to demonstrate a reasonable excuse for the delay and a meritorious defense, was not authorized in form or procedure and, thus, was without probative value (see CPLR 2214; Slavenburg Corp. v Opus Apparel, 53 NY2d 799 , 801 n [1981]; Mu Ying Zhu v Zhi Rong Lin, 1 AD3d 416 , 417 [2003]; Pisacreta v Minniti, 265 AD2d 540 [1999]; United Talmudical Academy of Kiryas Joel v Khal Bais Halevi Religious Corp., 232 AD2d 547 [1996]; Scherrer v Time Equities, 218 AD2

2005Moreover, the affirmation of the defendant’s president, submitted by the defendant for the first time as a sur-reply affirmation in an effort to demonstrate a reasonable excuse for the delay and a meritorious defense, was not authorized in form or procedure and, thus, was without probative value (see CPLR 2214; Slavenburg Corp. v Opus Apparel, 53 NY2d 799 , 801 n [1981]; Mu Ying Zhu v Zhi Rong Lin, 1 AD3d 416 , 417 [2003]; Pisacreta v Minniti, 265 AD2d 540 [1999]; United Talmudical Academy of Kiryas Joel v Khal Bais Halevi Religious Corp., 232 AD2d 547 [1996]; Scherrer v Time Equities, 218 AD2

2005Accordingly, the defendant’s default should not have been excused (see Ennis v Lema, supra).

2002Plaintiff established a reasonable excuse for the delay and a meritorious defense to the counterclaim, there is no indication that its failure to serve a timely reply was willful, the delay did not result in any prejudice to defendant, and public policy favors resolving cases on their merits rather than based on legal technicalities (see, CPLR 3012 [d]; Sippin v Gallardo, 287 AD2d 703 ; Theis v Langworthy, 270 AD2d 954 ; Kondolf v National Grange Mut.

2002Plaintiff established a reasonable excuse for the delay and a meritorious defense to the counterclaim, there is no indication that its failure to serve a timely reply was willful, the delay did not result in any prejudice to defendant, and public policy favors resolving cases on their merits rather than based on legal technicalities (see, CPLR 3012 [d]; Sippin v Gallardo, 287 AD2d 703 ; Theis v Langworthy, 270 AD2d 954 ; Kondolf v National Grange Mut.

2001In order to successfully oppose the plaintiff’s motion for leave to enter judgment based upon their failure to serve an answer, the defendants were required to demonstrate a reasonable excuse for the delay and a meritorious defense (see, Pumarejo-Garcia v McDonough, 242 AD2d 374 ).

1999Because the individual defendant is a party to the action, his submission of an affirmation instead of an affidavit was improper, and its contents should have been disregarded by the Supreme Court, thereby rendering the opposing papers insufficient to defeat the plaintiff’s motion (see, CPLR 2106; Slavenburg Corp. v Opus Apparel, 53 NY2d 799 ; Lauer v Rapp, 190 AD2d 778 ).

1998It is well established that in order to vacate a default judgment, the moving party must demonstrate both a reasonable excuse for the delay and a meritorious defense (Mezail v Ryder Truck Rental, 241 AD2d 902, 903 ).

1997The court properly exercised its discretion in excusing third-party defendant Pisacane Midtown Corporation’s four month delay in serving an answer where there was an absence of prejudice, a reasonable excuse for the delay and a meritorious defense (Lucas v United Helpers Cedars Nursing Home, 239 AD2d 853 ; Shure v Westhampton Beach, 121 AD2d 887 ).

1997The court properly exercised its discretion in excusing third-party defendant Pisacane Midtown Corporation’s four month delay in serving an answer where there was an absence of prejudice, a reasonable excuse for the delay and a meritorious defense (Lucas v United Helpers Cedars Nursing Home, 239 AD2d 853 ; Shure v Westhampton Beach, 121 AD2d 887 ).

1996Defendant’s submissions fail to establish a reasonable excuse for the delay and a meritorious defense to the action (see, CPLR 5015 [a] [1]; Voss Dental Lab v Surgitex, Inc., 210 AD2d 985 ).

1994A defendant moving to vacate a default in answering must present a reasonable excuse for the delay and a meritorious defense (see, Brosnan v Behette, 186 AD2d 165 ).

1986Center, 102 AD2d 842 ; Mineroff v Macy’s & Co., 97 AD2d 535 ).

1986Center, 102 AD2d 842 ; Mineroff v Macy’s & Co., 97 AD2d 535 ).