CPLR 2101(f) – Better Later Than Never

By Jonathan H. Freiberger

Deadlines are a big part of litigation. When a litigant serves a late paper, they may receive a notice of rejection in response. What happens if a notice of rejection is not timely served? If the rejection is made after fifteen days, the objection is deemed waived pursuant to CPLR 2101(f), which provides:

A defect in the form of a paper, if a substantial right of a party is not prejudiced, shall be disregarded by the court, and leave to correct shall be freely given.  The party on whom a paper is served shall be deemed to have waived objection to any defect in form unless, within fifteen days after the receipt thereof, the party on whom the paper is served returns the paper to the party serving it with a statement of particular objections.

In Gorgia v. Dolan, 250 A.D. 3d 809 (2d Dept. 2026), was an employment discrimination case. Pursuant to CPLR 3012(b) a complaint must be served within twenty days of demand. The motion court dismissed the complaint because it was served thirty days after the defendant’s demand. The Second Department reversed holding that the defendant waived the right to argue that the complaint was served late. The defendant was untimely in rejecting same and a “party is deemed to have waived late service where it retains the paper without rejecting to late service.” Gorgia, 250 A.D.3d at 813 (citations omitted).

In Lyles v. Nassau County, 213 A.D.3d 921 (2d Dept. 2023), the plaintiff served the defendant with a copy of the summons and complaint on March 15, 2019. More than two months later, defendant served and filed an untimely answer. The answer was never rejected, and, instead, the plaintiff moved for a default judgment five months later. The defendant cross-moved to dismiss the complaint as time-barred. The motion court denied plaintiff’s motion and granted the cross-motion. On plaintiff’s appeal, the Court affirmed holding that the retention of the answer without rejection waived the late service and default.

Aron Law, PLLC v. New York City Health and Hospitals Corp., 232 A.D.3d 528 (1st Dept. 2024), involved a petition regarding FOIL records. When petitioner’s response to a FOIL request contained numerous redactions, he brought an article 78 Proceeding seeking the production of unredacted documents. The motion court granted the petition and directed that the agency produce unredacted copies. On the agency’s appeal, the Court unanimously reversed. The Court found that the agency submitted, with the records, a detailed explanation of its redactions, in evidentiary form that should not have been disregarded by the motion court. In addition, the Court held that “petitioner waived any objections to any procedural deficiencies in the answer by raising them for the first time in reply, instead of returning the answer to respondent with a statement of objections within 15 days pursuant to CPLR 2101(f).” Aron Law, 232 A.D.3d at 529.

Against this backdrop we discuss PNC Bank, N.A. v. Kane, 2026 WL 2336292 (2d Dept. 2026). The defendant in PNC Bank made a pre-answer motion to dismiss the plaintiff’s foreclosure complaint. The motion was denied in June 2023. Pursuant to CPLR 3211(f), the defendant’s answer was due “ten days after service of notice of entry of the order” denying the motion. Instead, the defendant served her answer in October. Twenty days later the plaintiff rejected the answer as untimely. Thereafter, the defendant moved for an order compelling the plaintiff to accept a late answer and the plaintiff cross-moved for a default judgment. The motion court denied defendant’s motion and granted the cross-motion. On defendant’s appeal, the Second Department reversed holding that:

Pursuant to CPLR 2101(f), “[t]he party on whom a paper is served shall be deemed to have waived objection to any defect in form unless, within fifteen days after the receipt thereof, the party on whom the paper is served returns the paper to the party serving it with a statement of particular objections.” Here, the plaintiff’s undisputed failure to reject the defendants’ answer within the 15-day statutory time frame constituted a waiver of the late service and the default (see Globalized Realty Group, LLC v Crossroad Realty NY, LLC, 239 AD3d 950, 952; U.S. Bank N.A. v Lopezv, 192 AD3d 849, 850; Glass v Captain Hulbert House, LLC, 103 AD3d 607, 608-609). Accordingly, the Supreme Court should have granted the defendants’ motion to compel the plaintiff to accept their late answer and denied the plaintiff’s cross-motion for leave to enter a default judgment against the defendants (see U.S. Bank N.A. v Lopez, 192 AD3d at 850-851; Glass v Captain Hulbert House, LLC, 103 AD3d at 609).

Jonathan H. Freiberger is a partner and co-founder of Freiberger Haber LLP.

This article is for informational purposes and is not intended to be and should not be taken as legal advice.