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The Ramifications of Failing to Timely Serve Papers can be Severe

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  • Posted on: Aug 28 2020

Every now and then a litigant or counsel fails to meet a deadline or otherwise acts in an untimely manner.  Sometimes there is a reasonable excuse and sometimes there is not.  Several “saving” provisions in the CPLR are available to assist a litigant or counsel when deadlines are missed.  Some such provisions are as follows:

CPLR 2005 provides that “[u]pon an application satisfying the requirements of subdivision (d) of section 3012 or subdivision (a) of rule 5015, the court shall not, as a matter of law, be precluded from exercising its discretion in the interests of justice to excuse delay or default resulting from law office failure.”

CPLR 3012(d) provides that “[u]pon the application of a party, the court may extend the time to appear or plead, or compel the acceptance of a pleading untimely served, upon such terms as may be just and upon a showing of reasonable excuse for delay or default.”

CPLR 5015(a) provides that the “court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person with such notice as the court may direct, upon the ground of: (1) excusable default, if such motion is made within one year after service of a copy of the judgment or order with written notice of its entry upon the moving party, or, if the moving party has entered the judgment or order, within one year after such entry….” 

The key to availing one’s self of such provisions is the reasonableness of the excuse for the delay or default.  Indeed, there are many cases that analyze what constitutes “reasonable excuse” and/or excusable “law office failure.”  While in an article such as this, this BLOG would typically survey such cases, it will not do so today in order to illustrate the importance of avoiding forced reliance on the CPLR’s “savings” provisions.

Instead, this BLOG will summarize the August 26, 2020 decision of the Appellate Division, Second Department, styled: SRP 2015-1, LLC v. Thomas, in which the Court affirmed the motion court’s denial of defendants’ motion for leave to serve a late answer after plaintiff rejected their untimely answer.  

SRP 2015-1 was a mortgage foreclosure action commenced by the lender to foreclose on property owned by Thomas.  Apparently, after being served, Thomas contacted plaintiff’s counsel and entered into a stipulation pursuant to which Thomas’ time to answer the complaint was extended until May 20, 2016.  At the time, Thomas did not have an attorney.  Thomas retained an attorney on May 20, 2016, but counsel failed to serve Thomas’ answer until June 3, 2016, which plaintiff’s counsel rejected as untimely.  Thereafter, Thomas’ counsel moved for leave to serve a late answer and to compel plaintiff’s acceptance of same.  The motion was denied, and a judgment of foreclosure and sale was subsequently issued by the motion court.

In affirming the motion court’s order, the Second Department in SRP 2015-1 first recited the general law on “reasonable excuse” and stated:

To extend the time to answer the complaint and to compel the plaintiff to accept an untimely answer as timely, a defendant must provide a reasonable excuse for the delay and demonstrate a potentially meritorious defense to the action. The determination of what constitutes a reasonable excuse lies within the sound discretion of the Supreme Court. Law office failure may constitute a reasonable excuse (see CPLR 2005). However, conclusory and unsubstantiated allegations of law office failure are not sufficient, and mere neglect is not a reasonable excuse.  (Some citations, internal quotation marks and brackets omitted.)

The SRP 2015-1 Court then found that there was no reasonable excuse for missing the stipulated May 20, 2020 deadline (even though the answer was only served two weeks late).  The Court found that Thomas and counsel were guilty of “mere neglect” which was insufficient to rise to the level of a “reasonable excuse.”  (Citations and brackets omitted).  Specifically, the Court found that:

the defendants neglected the case by failing, for unexplained reasons, to retain their attorney until the day their answer was due under the extension that the plaintiff had granted. Their attorney then neglected their case by failing to answer for another two weeks. Counsel failed to provide a detailed or substantiated explanation as to why he could not have arranged for the answer to be prepared and served on or immediately after May 20, 2016.  (Citations omitted.)

The Court never decided the issue of whether Thomas had a meritorious defense because of its ruling on the issue of “reasonable excuse.”


Litigants and counsel should not take for granted that adversaries and/or the court will always grant courtesies or extensions of time to file papers.

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