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ROSSINI EXCAVATING CORPORATION v. SHELTER ROCK BUILDERS, LLC

310423/08, 5941, 5942, 5943, 5944

89 A.D.3d 467 (2011)

931 N.Y.S.2d 874

2011 NY Slip Op 7735

ROSSINI EXCAVATING CORPORATION, Respondent, v. SHELTER ROCK BUILDERS, LLC, et al., Appellants.

Appellate Division of the Supreme Court of New York, First Department.

Decided November 3, 2011.

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 A.D.3d 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...

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