PNC Bank, National Association v Kane
Categories
Attorneys and Parties
Brief Summary
Mortgage foreclosure procedure, specifically whether a plaintiff waives an objection to an untimely answer by failing to reject it within the statutory 15-day period.
The Supreme Court, Suffolk County, denied the defendants' motion to compel acceptance of their late answer and granted the plaintiff leave to enter a default judgment against them.
The Appellate Division reversed the September 16, 2024 order, granted the defendants' motion to compel acceptance of the answer, denied the plaintiff's cross-motion for a default judgment, and vacated the corresponding portions of the September 20, 2024 order.
Under CPLR 2101(f) [a party served with a paper waives objections to defects in form unless, within 15 days after receipt, it returns the paper with particular objections], the plaintiff waived any objection to the untimeliness of the answer by waiting 20 days to reject it.
Background
In September 2022, PNC Bank, National Association commenced an action to foreclose a mortgage on residential property in Shirley against Florence Kane, Penelope Kane, and others. The defendants made a pre-answer motion to dismiss under CPLR 3211(a) [pre-answer motion to dismiss], which was denied in June 2023. On October 5, 2023, they served an answer with counterclaims. The plaintiff did not reject the answer until October 25, 2023, 20 days later, as untimely. The defendants then moved to compel the plaintiff to accept the late answer, and the plaintiff cross-moved for leave to enter a default judgment.
Lower Court Decision
The Supreme Court, Suffolk County, held that the defendants were in default, denied their request to compel acceptance of the answer, and granted the plaintiff leave to enter a default judgment. A second order dated September 20, 2024 repeated that relief insofar as relevant to these defendants.
Appellate Division Reversal
The Appellate Division held that the plaintiff's failure to reject the answer within 15 days constituted a waiver of the lateness and the default. It therefore reversed the September 16, 2024 order, granted the defendants' motion, denied the plaintiff's cross-motion, vacated the corresponding portions of the September 20, 2024 order, and dismissed the appeal from the later order as academic.
Legal Significance
The decision reinforces that, in New York practice, a party cannot sit on an allegedly untimely pleading and later use that untimeliness as a basis for default if it did not make a timely rejection under CPLR 2101(f). Even in a mortgage foreclosure case, the waiver rule applies strictly when the receiving party keeps the answer beyond the statutory period without returning it with specific objections.
If a plaintiff receives a late answer and does not return it with specific objections within 15 days, the plaintiff waives the objection and cannot later obtain a default judgment based on that lateness.