Opinion
March 17, 1986
Appeal from the Supreme Court, Nassau County (Morrison, J.).
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.