Opinion
2003-1232 KC.
Decided May 28, 2004.
Appeal by plaintiff from an order of the Civil Court, Kings County (D. Silber, J.), dated June 30, 2003, which denied plaintiff's motion for a default judgment.
Order unanimously affirmed without costs.
PRESENT: PESCE, P.J., PATTERSON and GOLIA, JJ.
The motion court properly held that plaintiff's acceptance of the answer without objection, constituted a waiver of the late service and default ( Ligotti v. Wilson, 287 AD2d 550). The case of Nasca v. Gertel ( 5 AD3d 367) is not to the contrary. In that case the defendant was not deemed to have waived the late service of the answer and the default since the answer was served after the plaintiff moved for leave to enter a default judgment.