Opinion
December 17, 1992
Appeal from the Supreme Court, Delaware County (Mugglin, J.).
Plaintiffs commenced this RPAPL article 15 action against, among others, defendants Luciano Cottini and Genoveffa Cottini (hereinafter collectively referred to as defendants) to quiet title to property including a 50-foot right-of-way along Valley Road in the Town of Roxbury, Delaware County. Defendants were personally served with the summons and complaint on October 31, 1990. Although a verified answer was completed by November 2, 1990, it was not received by plaintiffs' counsel until December 17, 1990, at which time it was rejected as untimely. Supreme Court denied defendants' subsequent motion to compel acceptance of the answer (see, CPLR 3012 [d]) upon the ground that defendants offered no reasonable excuse for the untimely service. Defendants then moved to "rehear, renew and redetermine [the] prior motion", which Supreme Court also denied. Finally, Supreme Court granted plaintiffs' subsequent motion for entry of judgment against defendants and others upon default. Defendants appeal from the orders entered on all three motions.
In our view, Supreme Court properly denied defendants' motion to compel acceptance of the answer. Although we reject plaintiffs' contention that defendants were required to establish a meritorious defense (see, American Sec. Ins. Co. v Williams, 176 A.D.2d 1094; Better v Town of Schodack, 169 A.D.2d 965; Continental Cas. Co. v Cozzolino Constr. Corp., 120 A.D.2d 779), given defendants' failure to demonstrate a reasonable excuse for the admittedly brief delay Supreme Court acted well within its discretion in denying defendants' CPLR 3012 (d) motion (see, Kam Yue Man v Mantione, 174 A.D.2d 710, 711; Peters v Pickard, 143 A.D.2d 81, 82; see also, Frederick v Thomas, 174 A.D.2d 860, 861; Merwitz v Dental Care Servs., 155 A.D.2d 748, 749-750; but see, I.J. Handa, P.C. v Imperato, 159 A.D.2d 484 ; Matter of Prudential Prop. Cas. Ins. Co. v Rothman, 116 A.D.2d 652). The excuse offered by defendants for their failure to interpose a timely answer was that they required additional time to locate an existing survey of their property. However, as quite correctly noted by Supreme Court, this excuse was effectively nullified by the fact that the answer which was ultimately forwarded to plaintiffs is the very one which was completed on November 2, 1990 without the benefit of any such survey. Further, the defense interposed in defendants' proffered answer, that they "have obtained title to any portion of the lands claimed by the plaintiffs which transverses or touches their parcel by adverse possession for the prescriptive period", required no reference to a survey map. The current contention that the delay was caused by law office failure (see, CPLR 2005) was not raised in Supreme Court and lacks factual support in the record (see, American Sigol Corp. v Zicherman, 166 A.D.2d 628, 629; Tandy Computer Leasing v Video X Home Lib., 124 A.D.2d 530, 531).
Supreme Court denied defendants' motion to "rehear, renew and redetermine" upon the ground that defendants had come forward with no further excuse for their pleading default. In our view, Supreme Court's determination amounts to a denial of a motion for reargument (see, Di Nezza v Credit Data, 166 A.D.2d 768, 769, lv dismissed, lv denied 77 N.Y.2d 935; Foley v Roche, 68 A.D.2d 558, 567-568), which is not subject to review (see, Levy v Blue Cross Blue Shield, 162 A.D.2d 931, 932; Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C2221:7, at 183). Finally, inasmuch as the record shows no opposition to plaintiffs' motion for judgment upon default, the order entered thereon may not be appealed (see, CPLR 5511).
Mikoll, J.P., Levine, Mahoney and Casey, JJ., concur. Ordered that the order entered March 12, 1991 is affirmed, with costs. Ordered that the appeals from orders entered July 3, 1991 and December 11, 1991 are dismissed.