Yuen Roccanova Seltzer & Svred, PC, New York, for Plaintiff.
[968 N.Y.S.2d 853] Robinowitz Cohlan Dubow & Doherty, LLP, White Plains.
WILLIAM J. GIACOMO, J.
Plaintiff commenced this breach of contract action on November 6, 2012. A copy of the summons with notice was served on defendant on November 27, 2012. On November 29, 2012, defendant's attorney filed a notice of appearance and a demand for the complaint.
On December 19, 2012, plaintiff electronically filed the verified complaint and also served a " courtesy" copy of the complaint upon defendant via first class mail.
Defendant electronically filed its answer on January 11, 2013.
Plaintiff now moves for a default judgment on the ground that it electronically served defendant with the complaint on December 19, 2012. Therefore, the time to serve an answer expired 20 days later on January 7, 2013.
Defendant cross moves for an order declaring its answer to be timely or, in the alternative, to vacate its default should the Court find it in default. In support of its motion, defendant notes that 22 NYCRR § 202.5-b(f)(2)(ii) provides:
(ii) How service is made. Where parties to an action have consented to e-filing, a party causes service of an interlocutory document to be made upon another party participating in e-filing by filing the document electronically. Upon receipt of an interlocutory document, the NYSCEF site shall automatically transmit electronic notification to all e-mail service addresses in such action. Such notification shall provide the title of the document received, the date received, and the names of those appearing on the list of e-mail service addresses to whom that notification is being sent. Each party receiving the notification shall be responsible for accessing the NYSCEF site to obtain a copy of the document received. Except as provided otherwise in subdivision (h)(3) of this section, the electronic transmission of the notification shall constitute service of the document on the e-mail service addresses identified therein; however, such service will not be effective if the filing party learns that the notification did not reach the address of the person to be served. Proof of such service will be recorded on the NYSCEF site. A party may, however, utilize other
service methods permitted by the CPLR provided that, if one of such other methods is used, proof of that service shall be filed electronically. (Emphasis supplied)
According to defendant, if a litigant elects to electronically file papers and then also serves it pursuant to the CPLR the respondent has the benefit of the CPLR time frames. Therefore, pursuant to CPLR 2103(b)(5), since plaintiff served its complaint by first class mail 5 days were added to defendant's time to answer. Defendant argues that since it was served via first class mail on December 18, 2013 it had until January 14, 2013 (since January 12, 2013 was a Saturday) to serve its answer. Since, defendant served its answer on January 11, 2013 it was timely.
Defendant also argues that if this Court finds its answer not timely served, the 4-day delay in answering is de minimus, it has a meritorious defense to this action and plaintiff was not prejudiced by the delay; ...