Nason v. Fisher , 765 N.Y.S.2d 32 ( 2003 )

Order, Supreme Court, New York County (Barbara Kapnick, J.), entered May 9, 2003, which denied plaintiffs’ motion for, inter alia, “summary judgment” in this action alleging breach of a retainer agreement, constructive fraud, and other claims, and granted defendants’ motion to compel plaintiffs to accept the verified answer “out of time in this action” by deeming the answer to be served nunc pro tunc as of the date of service of defendants’ notice of motion, on condition that defendants’ counsel forward a check in the amount of $350 in costs to plaintiffs within 10 business days, unanimously affirmed, without costs.

The motion court properly exercised its discretion in granting defendants’ motion to compel plaintiff to accept service of their late answer since the delay in serving the answer was relatively short and attributable to law office failure (see CPLR 3012 [d]; DeMarco v Wyndham Intl., 299 AD2d 209 [2002]). Here, the verified answer was served (and rejected by plaintiff) only about three months after the amended complaint was served. Moreover, as the court found, there was no real pattern of defaults — defendants’ counsel explained that “miscues in my office, miscommunications between my associate and myself’ caused counsel to be unaware of only a few disclosure/ deposition dates from mid-February 2003 to early March 2003. Counsel also indicated that he misinterpreted the procedure for scheduling depositions, based on his relative lack of familiarity with civil procedure.

While technically there was no need for defendants to set forth a meritorious defense in support of their motion to compel acceptance of their answer, since no default order or judgment had been obtained by plaintiff (id.), we note that defendants have adequately set forth such a defense.

For these reasons, the court properly denied plaintiffs’ motion for “summary judgment,” which essentially sought a default judgment. Concur — Buckley, P.J., Nardelli, Mazzarelli, Ellerin and Lerner, JJ.