| Zareef v Lin Wong |
| 2009 NY Slip Op 02990 [61 AD3d 749] |
| April 14, 2009 |
| Appellate Division, Second Department |
| Shareen Zareef, Appellant, v Lin Wong et al.,Respondents. |
—[*1] Mulholland, Minion & Roe, Williston Park, N.Y. (Paul McBride of counsel), forrespondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Queens County (Taylor, J.), dated August 4, 2008, which denied her motionpursuant to CPLR 3215 for leave to enter judgment against the defendants upon their default inappearing or answering, and granted the defendants' cross motion pursuant to CPLR 3012 (d) tocompel the plaintiff to accept their answer.
Ordered that the order is affirmed, with costs.
The plaintiff served the defendants pursuant to CPLR 308 (4) by affixing copies of thesummonses and complaints to the address of the defendants' "actual place of business, dwellingplace, or usual place of abode" on November 12, 2007 and by mailing copies to the same addresson November 13, 2007. The proofs of service were filed on December 20, 2007, well beyond the20-day filing period required by CPLR 308 (4). In opposition to the plaintiff's motion pursuant toCPLR 3215 for leave to enter judgment against the defendants upon their default in appearing oranswering, the defendants served an answer on March 4, 2008, and cross-moved to compel theplaintiff to accept their answer. The Supreme Court denied the plaintiff's motion and granted thedefendants' cross motion.
While the failure to file a timely proof of service is a curable procedural irregularity, here,the plaintiff did not obtain an order permitting a late filing of proof of service (see Bank ofNew [*2]York v Schwab, 97 AD2d 450 [1983]).Accordingly, the late filings were nullities and the defendants' time to answer never began to run(see Bank of New York v Schwab, 97 AD2d 450 [1983]; Marazita v Nelbach, 91AD2d 604 [1982]). Since the defendants never defaulted, the plaintiff's motion pursuant to CPLR3215 for leave to enter judgment against them was properly denied (see Hausknecht vAckerman, 242 AD2d 604, 606 [1997]; Paracha v County of Nassau, 228 AD2d 422[1996]; Rosato v Ricciardi, 174 AD2d 937 [1991]). Moreover, the defendants' crossmotion pursuant to CPLR 3012 (d) to compel the plaintiff to accept their answer was properlygranted. Skelos, J.P., Florio, Balkin and Belen, JJ., concur.