Opinion
2002-1594 Q C.
Decided October 21, 2003.
Appeal by plaintiff from an order of the Civil Court, Queens County (E. Walker, J.), entered September 25, 2002, which granted defendant's motion to compel plaintiff to accept its late answer.
Order unanimously reversed without costs and defendant's motion to compel plaintiff to accept its late answer denied.
PRESENT: PESCE, P.J., ARONIN and PATTERSON, JJ.
Plaintiff commenced the instant action to recover first party no-fault benefits by service of a summons and complaint upon defendant on January 14, 2002. Defendant's attorney served a late answer on April 18, 2002. Thereafter, defendant moved to compel plaintiff to accept the answer. In order to be entitled to the relief requested, defendant must establish a reasonable excuse for its delay in answering (CPLR 3012 [d]; Frank Mar. Constr. Corp. v. Precision Partners Realty Corp., 284 AD2d 496; Elite Limousine Plus v. Allcity Ins. Co., 266 AD2d 259) as well as a meritorious defense ( see Leogrande v. Glass, 106 AD2d 431). The affirmation of defendant's attorney asserted that the delay in answering was a result of defendant's home office's failure to promptly forward the summons and complaint to its claims office. Inasmuch as defendant's attorney failed to allege that she had personal knowledge as to when the summons and complaint was received by defendant's home office and when it was forwarded to the claims office, her affirmation was insufficient to establish a satisfactory reason for defendant's delay in answering.
Furthermore, while defense counsel stated in her affirmation that plaintiff entered into a stipulation thereby extending defendant's time to answer until April 22, 2002, the stipulation attached as an exhibit was not signed by plaintiff's counsel. Since plaintiff's counsel denied ever agreeing to such an extension either orally or otherwise, the stipulation was not binding upon plaintiff and does not establish the existence of an agreement warranting the granting of defendant's motion ( see Fabre v. Damart Enters., 182 Misc 2d 514, 515).
We also note that defense counsel failed to attach an affidavit of merit establishing the existence of a meritorious defense. Accordingly, the lower court's order granting defendant's motion to compel plaintiff to accept its late answer should be reversed and the motion denied.