Appellate Division of the Supreme Court of New York, 2002

Celleri v. Pabon

Appellate Division of the Supreme Court of New York · Decided November 12, 2002

299 A.D.2d 385; 749 N.Y.S.2d 427

Cases that cite this one

6 later published cases cite this decision.

Globalized Realty Group, LLC v. Crossroad Realty NY, LLC (Appellate Division of the Supreme Court of New York 2025)
U.S. Bank N.A. v. Lopez (Appellate Division of the Supreme Court of New York 2021)
First Franklin Financial Corp. v. Forrest (Appellate Division of the Supreme Court of New York 2011)
Jian Zheng v. Evans (Appellate Division of the Supreme Court of New York 2009)
Katz v. Perl (Appellate Division of the Supreme Court of New York 2005)
Santiago v. Santana (Appellate Division of the Supreme Court of New York 2004)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

In an action to recover damages for personal injuries, the defendant appeals from (1) an order of the Supreme Court, Kings County (Vaughan, J.), dated March 13, 2002, which denied his motion to compel the plaintiff to accept his late answer, and (2) an order of the same court dated April 24, 2002, which granted the plaintiff’s motion for leave to enter judgment on the issue of liability upon the defendant’s default in answering, and for an inquest on the issue of damages.

Ordered that the orders are affirmed, with one bill of costs.

The defendant contends that the plaintiff waived the issue of the late service of the answer on the ground that the plaintiff did not object within the statutory time frame (see CPLR 2101 [f]; Ligotti v Wilson, 287 AD2d 550; Nassau County v Incorporated Vil. of Roslyn, 182 AD2d 678; Diamadopolis v Balfour, 152 AD2d 532). However, the defendant failed to submit sufficient *386proof to establish a presumption that he served the answer on July 26, 2001 (see Kihl v Pfeffer, 94 NY2d 118; Engel v Lichterman, 62 NY2d 943, 944-945; Dixon v Motor Veh. Acc. Indem. Corp., 224 AD2d 382, 383; Matter of T.E.A. Mar. Automotive Corp. v Scaduto, 181 AD2d 776, 779), so as to render the plaintiffs August 20, 2001, objection untimely.

Furthermore, the plaintiff submitted proof of service of the summons and the complaint, and an affidavit of the facts constituting the claim (see CPLR 3215 [f]). Accordingly, the Supreme Court correctly granted the plaintiff leave to enter judgment on the issue of liability in his favor. Santucci, J.P., Smith, Goldstein, H. Miller and Mastro, JJ., concur.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.