Rossini Excavating Corp. v Shelter Rock Bldrs., LLC, 2011 NY Slip Op 07735 [89 AD3d 467]

November 3, 2011

Appellate Division, First Department

— [*1]

Robert Litwack, Forest Hills, for appellants.

Arnold S. Kronick, White Plains, for respondent.

Judgments, Supreme Court, Bronx County (Kenneth L. Thompson, J.), entered October 4, 2010, and April 1, 2011, in plaintiff’s favor, unanimously reversed, on the law, with costs, and the judgments vacated. Appeal from order, same court and Justice, entered September 8, 2010, which granted plaintiff’s motion for a default judgment and denied defendants’ motion to compel acceptance of their late answer, unanimously dismissed, without costs, as subsumed in the appeal from the October 4, 2010 judgment. Appeal from order, same court and Justice, entered April 11, 2011, which, upon reargument, adhered to the original determination, unanimously dismissed, without costs, as academic.

There was no default in answering. Plaintiff waived its objections to the untimeliness of defendants’ answer by serving a reply to the counterclaims after rejecting the late answer and moving for a default judgment ( cf. Oparaji v Duran , 18 AD3d 725 [2005]). In view of the foregoing, whether defendant demonstrated the grounds required for vacatur of a default and the other issues arising from the subsequent chain of events are academic. Concur—Mazzarelli, J.P., Saxe, Acosta, DeGrasse and Manzanet-Daniels, JJ..