Use Time-Sensitive Procedural Rules to Your Advantage

When your client is served with process, you may have 20 or 30 days to file a responsive pleading or otherwise move, depending on the type of service effectuated. But are you completely out of luck if you fail to abide by this time constraint? The answer invariably depends, but there is a sliver of hope if you’ve missed the deadline. In New York, Civil Practice Law and Rules (CPLR) § 2001 permits a court to forgive any mistake, omission, defect, or irregularity, upon just terms, so long as a substantial right of a party has not been prejudiced. In fact, the practice commentaries explain that in an enlightened system of civil procedure, such liberality is essential, as form should not be elevated over substance.

Additionally, CPLR 2101(f) provides that a defect in form, if a substantial right of a party is not prejudiced, shall be disregarded by the court, and leave to correct shall be allowed. The party on whom the paper is served shall be deemed to have waived the objection to any defect in form unless, within 15 days after the receipt thereof, the party upon whom the paper is served returns the paper with a statement of particular objections. A plaintiff’s attorney usually feels they have nearly won the case if no answer is received within the time allotted pursuant to CPLR § 320(a). However, plaintiffs’ counsels, take heed: Your complacency may result in an advantage for the defense counsel. If a late answer is received, be sure to object within 15 days of receipt thereof; otherwise, you waive your right to do so. If, as the tardy defendant, you are lucky enough that plaintiff’s counsel has failed to object within 15 days, you find yourself in a fortunate situation indeed.

Your procedural vehicle for seeking permission from the court to file a late answer while asserting CPLR §§ 2001(a) and/or 2101(f) is CPLR § 3012(d), which provides that the court may extend the time to appear or plead or may compel acceptance of an untimely pleading upon just terms and a showing of a reasonable excuse for delay.

One last procedural time constraint that defense counsels should be aware of is the one outlined in CPLR § 3211(e). While you may feel confident in your case if the plaintiff failed to effectuate timely service upon your client, this slight advantage may be lost unless you make a motion to dismiss the complaint within 60 days of asserting such a defense. Conversely, in aid of plaintiffs’ counsels who failed to serve a defendant timely, a motion pursuant to CPLR § 306-b may be your saving grace.

Awareness of time-specific CPLR sections and a pleading to the court to rule in line with its long-standing principle of adjudicating cases on the merits may save your case. And while procedure should not be elevated over substance, it is this procedural knowledge that provides the diligent litigator a true advantage.