Opinion
January 22, 1981
Appeal from an order of the County Court of Fulton County, entered January 24, 1980, which granted defendant's motion to extend the time to serve her answer. The record reveals that the defendant's answer was served three days late and immediately returned by counsel for plaintiff. Instead of moving to excuse the default, the defendant moved by order to show cause to extend the time to answer. Although the plaintiff in its moving papers correctly pointed out that the appropriate and only relief available would be a motion to be relieved from the default, the County Court nevertheless considered the matter on the merits and granted the motion. As found by the County Court, the defendant's default was minimal. However, in the absence of an affidavit showing a meritorious defense, the defendant should not have been granted any relief in this action. Inasmuch as the County Court did not treat the motion as one to excuse or open the default and no cross motion for a default judgment was made by the plaintiff, the motion should now be denied without prejudice to any later motion to open the default. (Cf. Keith v. New York State Teachers' Retirement System, 56 A.D.2d 671, mot for lv to app den 42 N.Y.2d 801.) Order reversed, on the law, without costs, and motion denied without prejudice. Sweeney, J.P., Kane, Main, Mikoll and Herlihy, JJ., concur.