In the jurisdiction of the state of New York, a lawsuit demanding payment for a debt must be responded to within 20 days of the defendant being personally served. I assume this is a statutory limit, but have not actually checked the law myself.

However, I have read in various places that courts in New York routinely allow defendants to break this limit and respond to such lawsuits late.

I have a case in which the defendant is an experienced businessman with high powered legal representation, yet he responded 17 days late. How can I forestall the court accepting this late response? In other words, I will petition the court for a default judgement on the grounds that no response was made within the statutory time limit. I am afraid the court might deny my petition. I don't understand how the court can do this in the case of a legally experienced defendant. If it was a consumer defendant, the court might say the defendant is naive and deserves the benefit of the doubt, but that is not the case here.

How can I forestall the possibility that the court goes against the law in this way, and if it does, how is it appealed?

  • Not a lawyer, but the answers here seem to agree with my experience about courts' handling of rules. I once had a plaintiff maliciously file against me in the wrong jurisdiction and when I asked the court to dismiss it on these grounds they just transferred it to the right jurisdiction for the plaintiff. Aug 26, 2022 at 13:55

2 Answers 2


he responded 17 days late. How can I forestall the court accepting this late response?

Your chances are very slim if the defendant "provide[s] a reasonable excuse for the delay and demonstrate[s] a potentially meritorious defense to the action". Wells Fargo Bank v. Chateau, 36 Misc.3d 280-281 (2012) (brackets added, citations omitted). The extent of the delay is listed among the relevant factors in the "discretionary, sui generis determination to be made by the court" of whether the excuse is reasonable, Id.

EHS Quickstops Corp. v. GRJH, Inc., 112 A.D.3d 577, 578 (2013) explains that motions for default judgment are denied by virtue "of the lack of prejudice to the plaintiffs resulting from the short delay in serving an answer, the lack of willfulness on the part of the defendant, the existence of a potentially meritorious defense, and the public policy favoring the resolution of cases on the merits".

In the absence of further context, the sole delay of 17 days seems unlikely to outweigh the aforementioned criteria.

  • 1
    If its a statutory limit, I don't see how it can be discretionary to the court, unless it says that in New York law.
    – Cicero
    Aug 25, 2022 at 15:05
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    @Cicero "I don't see how it can be discretionary to the court, unless it says that in New York law". It does. See NY CPLR §§2004 and 2005. The number of NY decisions based on EHS Quickstops suggests that the statutory language "Except where otherwise expressly prescribed by law" is not applicable to the deadline for filing responsive pleadings. Aug 25, 2022 at 15:21
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    (1) Rules are laws, and it is not uncommon for them to take precedence over statutes when those statutes purport to govern how the courts conduct their business. (2) It would be helpful if you could provide a source for your claim that the time limit is 20 days. From there, we could probably see more clearly how much leeway a court should have to waive the requirement.
    – bdb484
    Aug 25, 2022 at 15:46
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    On the first point, you are mistaken. It's probably mostly just a semantic argument, but I can tell you for sure that the courts reject your position. Statutes are created by elected officials, but statutes are only one source of law. Treaties, executive orders, agency regulations, rules of court, and court decisions are likewise sources of law. Sometimes they are created by elected officials; sometimes they are not.
    – bdb484
    Aug 25, 2022 at 17:11
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    @Cicero "The defendant did not ask for an extension". That would be a moot request because the defendant already filed a response. "nor did the defendant in any part of their response show good cause for it to be late." I would be surprised if that sole element turns out to outweigh the rest of relevant factors. "what you linked appears to be a rule, not a law." Quite the contrary. Unlike CPLR §2004, §320 is the one prefixed with Rule. Regardless, I doubt a rule vs. law distinction will determine the outcome. Aug 25, 2022 at 18:38

Trial courts generally have extremely wide latitude in managing their dockets, so you can ask the court to disallow the filing, but you're not on very strong grounds, legally. Regardless of the opposing party's savvy or resources, the court can simply rely on the principle that cases ought to be decided on their merits. If you appeal the decision to permit the filing, you will almost certainly lose.

And of course, the court could easily say nearly the same thing about you. Once the opposing party was in default, you should have moved for default judgment immediately, but you sat and waited for weeks instead. Why should the court permit you to move for default judgment now, especially now that the defendant is no longer in default.

  • The lawsuit was filed within the statutory limit for that type of case. The defendant did not answer within the statutory limit. Maybe I am not understanding the law. Is the response limit STATUTORY or is it just some limit listed as the whim of the court?
    – Cicero
    Aug 25, 2022 at 15:04
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    I don't know the situation in New York, but generally speaking, these matters are governed by the state's Rules of Civil Procedure, not by statute. If that's the case, the court would likely be free to accept any flimsy excuse the defendant offers for the late filing. There is a ~0% chance that a court of appeals would reverse that decision, and it wouldn't even consider it until the case had been fully resolved on the merits.
    – bdb484
    Aug 25, 2022 at 15:42
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    Asking the court for default judgement when the respondent has filed late could even be harmful to your case as it leaves the judge with the impression that you yourself don't believe to have a strong case as your new filing puts a technicality to the front and the merits therefore take a back seat. Aug 26, 2022 at 9:21
  • The rule/law is CPLR 320. That looks like a statute to me. As mentioned above there is another statute (?) CPRL 2004 that allows the court to grant extensions if "good cause" is shown. So, I take it, any old bullshit is "good cause"?
    – Cicero
    Aug 26, 2022 at 17:16

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