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DOLGIN ENTER. LTD. v. CENT. ADJUSTMENT BUREAU
Factual and Procedural Background
This opinion arises from an appeal in the Supreme Court, Nassau County, involving Dolgin Enterprises, Ltd. as appellant and Central Adjustment Bureau, Inc. as respondent. The procedural posture concerns a motion to compel acceptance of a late reply to pleadings and a cross motion for leave to enter a default judgment on counterclaims. The plaintiff sought an extension of time to serve its reply before the defendant moved for a default judgment.
Legal Issues Presented
- Whether the plaintiff’s motion to compel acceptance of a late reply, effectively a motion for an extension of time under CPLR 2004, was properly supported and timely served.
- Whether the court abused its discretion by denying the plaintiff’s motion to accept the late reply and granting the defendant’s cross motion for a default judgment on counterclaims.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Mobil Oil Corp. v. Christian Oil Gas Distribs., 95 A.D.2d 772, 773 | Characterization of a motion to compel acceptance of a late reply as a motion for extension of time under CPLR 2004. | Used to establish that the plaintiff’s motion was properly considered as a motion for extension of time prior to the defendant’s motion for default judgment. |
| A J Concrete Corp. v. Arker, 54 N.Y.2d 870 | Requirement that a movant seeking extension of time after expiration must provide an affidavit of merit or verified pleading; courts have broader discretion under CPLR 2004 before dismissal motions. | Supported the court’s finding that the plaintiff’s verified reply sufficed and the motion was not deficient as a matter of law. |
| Junior v. City of New York, 85 A.D.2d 683 | Supporting principle regarding motions for extension of time and verified pleadings. | Reinforced the acceptability of verified pleadings in lieu of affidavits of merit for such motions. |
| Kel Mgt. Corp. v. Rogers Wells, 64 N.Y.2d 904 | Clarification on the requirement of affidavit of merit or verified pleading for extensions of time. | Referenced to confirm that the plaintiff’s motion was not deficient, supporting reversal of the lower court’s order. |
Court's Reasoning and Analysis
The court analyzed the plaintiff’s motion as a request for an extension of time under CPLR 2004, which was filed before the defendant’s motion for default judgment. It relied on established precedents that allow courts broader discretion in granting extensions prior to dismissal motions, provided the movant submits an affidavit of merit or verified pleading. Here, the plaintiff’s verified reply, verified by an officer with personal knowledge, was deemed sufficient. The short delay and absence of prejudice to the defendant further supported granting the extension. The court found that the lower court erred in failing to exercise discretion to accept the late reply and to vacate the default. Moreover, granting the default judgment on the defendant’s counterclaim would have unfairly prejudiced the plaintiff’s timely complaint. Thus, the appellate court exercised its discretion to reverse the order, grant the plaintiff’s motion, and deny the defendant’s cross motion.
Holding and Implications
Order reversed, plaintiff’s motion granted, and defendant’s cross motion denied.
The court’s decision directly reinstates the plaintiff’s right to have its verified reply accepted despite its late service and prevents the entry of a default judgment against the plaintiff on the counterclaims. No new legal precedent was established; rather, the court applied existing discretionary standards for extensions of time under CPLR 2004 and verified pleadings. The ruling ensures procedural fairness by emphasizing the court’s discretion in managing pleadings and motions prior to dismissal or default judgments.
Order reversed, motion granted and cross motion denied. The plaintiff's verified reply attached to its moving papers is deemed timely served.
"The motion to compel acceptance of a late [reply] was, in effect, a motion seeking an extension of time in which to serve [a reply]" (Mobil Oil Corp. v. Christian Oil Gas Distribs., 95 A.D.2d 772, 773), as the plaintiff's motion preceded the defendant's motion for leave to enter a default judgment. As such, it was not deficient as a matter of law for failure to serve an affidavit of merit where the delay was short, there was no prejudice to the defendant, and the motion was supported by a pleading verified by an officer of the plaintiff corporation with personal knowledge of the facts (see, A J Concrete Corp. v. Arker, 54 N.Y.2d 870; Junior v. City of New York, 85 A.D.2d 683).
As the Court of Appeals stated in the A J Concrete Corp. v Arker case (supra, at p 872): "[T]he courts enjoy a somewhat broader range of discretion when considering a motion for an extension of time under CPLR 2004 which precedes any motion to dismiss than when considering a motion to dismiss pursuant to CPLR 3012 (subd [b]), whether or not countered by a motion for extension of time". The Court of Appeals explicitly held that once the time to serve a pleading has expired, as here, the movant "must provide the court with an affidavit of merit or a verified [pleading] in lieu thereof" (A J Concrete Corp. v Arker, supra, at p 872). Accordingly, the plaintiff's motion was not deficient as a matter of law (cf. Kel Mgt. Corp. v. Rogers Wells, 64 N.Y.2d 904), and Special Term erroneously failed to exercise its discretion. Because a default judgment on the defendant's first counterclaim for reformation of the agreement would also adversely affect the plaintiff's timely served complaint, and because the plaintiff met the requirements for an extension of time to reply, we exercise our discretion and grant the plaintiff's motion to vacate its default and to compel acceptance of the reply and deny the defendant's cross motion for leave to enter a default judgment on the counterclaims. Mangano, J.P., Gibbons, Lawrence and Kunzeman, JJ., concur.
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