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I filed an answer to a NY Supreme Court complaint that included

a counterclaim dated Jan. 18...
I filed an answer to a NY Supreme Court complaint that included a counterclaim dated Jan. 18, 2013.
My adversary filed an answer to my counterclaim that included a certificate of service dated February 7, 2013, but filed that answer (the document) with the Court on February 19, 2013.
Is she obligated to file the answer to the counterclaim with the Court?
Was she in default by the delay in answering the counterclaim?
Which date controls: the date of the service in the affidavit, or the date on which she filed with the Clerk of the Court?
How many days does she has to answer a counterclaim? 20 days?
I will not pay unless you refer me to a CPLR section or better, a case.
Thanks
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Answered in 20 minutes by:
7/31/2013
TexLaw
TexLaw, Attorney
Category: Legal
Satisfied Customers: 4,430
Experience: Lead trial/International commercial attorney licensed 11 yrs
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Hi,

Thanks for your question.

A counterclaim is counted as a complaint to which Section 3012 of the CPLR applies. See Rupert v. Rupert, 192 A.D.2d 925 (NYS S Ct Ap, 1993).

Pursuant to CPLR 3012 (a) "Service of an answer or reply shall be made within twenty days after service of the pleading to which it responds." Accordingly, it is the service date in the affidavit which counts (if in fact the service was achieved on the date stated in the affidavit). Time runs from time of mailing answer, and not time of its receipt. Jackson & Perkins Co. v Rose Fair, Inc. (1951) 278 App Div 890, 104 NYS2d 892.

Of course, the Answer must also be filed to have any effect and the plaintiff has a duty to file, which they did eventually do in your case.

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Customer reply replied 4 years ago


So, there is no time limitation for the plaintiff to file with the court his answer to my counterclaim. Is that correct?

It has to be filed:

NY CLS CPLR R 2102 (2013)

R 2102. Filing of papers

(a) Except where otherwise prescribed by law or order of court, papers required to be filed shall be filed with the clerk of the court in which the action is triable. In an action or proceeding in supreme or county court and in a proceeding not brought in a court, papers required to be filed shall be filed with the clerk of the county in which the proceeding is brought.


Failure to file the answer would trigger your right to move for default judgment, but because the answer was served in a timely manner, you don't have an automatic right to the default. The default would be granted if the person did not file the answer along with a statement of reasonable excuse "A defendant who has failed to timely appear or answer the complaint must provide a reasonable excuse for the default and demonstrate a meritorious defense to the action in moving to extend the time to answer or to compel the acceptance of an untimely answer." (see Moriano v Provident NY Bancorp, 71 AD3d 747, 899 N.Y.S.2d 246 [2d Dept. 2010]; Baldwin v Mateogarcia, 57 AD3d 594, 869 N.Y.S.2d 217 [2d Dept. 2008]; [**5] CPLR 5015[a][1]).
TexLaw
TexLaw, Attorney
Category: Legal
Satisfied Customers: 4,430
Experience: Lead trial/International commercial attorney licensed 11 yrs
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