In a negligence action to recover damages for personal injuries, plaintiff appeals from an order of the Supreme Court, Kings County (Cooper, J.), dated December 18, 1980, which (1) denied her motion to enter judgment based on defendant’s default in timely pleading to the complaint, and (2) granted defendant’s cross motion to require plaintiff to accept its answer, demand for a 684 bill of particulars, and “combined demand notice for discovery, inspection and copying.” Order affirmed, without costs or disbursements.
Plaintiff commenced the instant action, seeking damages for personal injuries, by service of a summons and complaint on August 25, 1980. The defendant did not answer or otherwise move within the time set forth in CPLR 3012. However, on October 17,1980, the Corporation Counsel mailed the defendant’s answer, along with a demand for a bill of particulars and a combined notice for discovery, inspection and copying.
Plaintiff’s counsel rejected the papers as untimely and, by notice of motion dated November 24, 1980, moved pursuant to CPLR 3215 for a default judgment. The defendant cross-moved for an order (1) vacating its default in answering, and (2) directing the plaintiff to accept its late answer. The affirmation in support of the cross motion demonstrated a possible, meritorious defense.
To excuse the delay, an Assistant Corporation Counsel affirmed that “the plaintiff has not been prejudiced by this short delay occasioned by continuing difficulties by the Municipality in processing matters under the continuing financial straits of the Government of the People of the City of New York.” Special Term denied the plaintiff’s motion and granted the defendant’s cross motion; the plaintiff has appealed. The order should be affirmed.
The defendant’s delay in answering was not substantial — only 33 days elapsed between the time when the defendant should have answered pursuant to statute (Sept. 14, 1980), and the time when the answer was actually served. Moreover, the defendant has affirmatively demonstrated its intent to defend the action by serving the answer before any application was made by the plaintiff, and by actively opposing the plaintiff’s motion for a default judgment.
While the defendant’s excuse for the delay may be characterized as “law office failure” (see Beetz v City of New York, 73 AD2d 925), Special Term did not abuse its discretion in denying the motion for a default judgment and in permitting the defendant to serve a later answer. The extension of time to plead was properly granted since the delay in service was not willful or lengthy, and did not cause prejudice to the plaintiff (see A & J Concrete Corp. v Arker, 54 NY2d 870).
Barasch v Micucci (49 NY2d 594) does not require a different result. In Barasch the Court of Appeals held that law office failure did not constitute a valid excuse for a five- and one-half month delay in serving a complaint. But Barasch did not strip the courts of all authority to excuse short delays in pleading which are attributable to law office failure.
Thus, in A & J Concrete (supra), the Court of Appeals held that the Supreme Court did not abuse its discretion in granting the plaintiffs additional time to plead where the complaint had been served several days late, but the plaintiffs had moved for relief pursuant to CPLR 2004 before the defendant moved to dismiss under CPLR 3012.
Our dissenting brethren suggest that the A & J Concrete exception is applicable only where the defaulting party’s motion for an extension precedes an application by his opponent for judgment — otherwise the strict Barasch approach controls. We do not agree. The fact that a defaulting party moves, on his own initiative, for an extension of time in which to plead is significant because it demonstrates that the party intends to seriously prosecute, or defend, the action.
But the question of whether a default can be excused will not always turn on who wins the race to the courthouse. In the case at bar, the defendant did not move promptly (as it should have done) for relief pursuant to CPLR 2004. Yet, by serving an answer, after a brief delay and before the plaintiff moved for a default judgment, it demonstrated unequivocally its intention to diligently defend the action.
While the excuse proffered by the Assistant Corporation Counsel could not have justified a substantial delay in pleading, it was sufficient to permit Special Term, in the exercise of its discretion, to accord the 685 defendant an opportunity to defend the case on the merits. It should also be noted that, in the instant case, the failure to timely plead was by the defendant and not, as in Barasch, by the plaintiff. This distinction is not without significance.
Since it is the plaintiff who chooses to bring the action and determines the time for its commencement, strict compliance with the time periods for serving a complaint is generally required. Understandably, however, the courts are somewhat more lenient when it is the defendant who defaults.
(See Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3215:24, p 880.) Of course, the courts will not readily open a default judgment against a defendant which has been entered after a prolonged delay in answering, or following unheeded warnings by the plaintiff that judgment was imminent unless an answer was served. In such circumstances, the Barasch criteria are applicable, and some excuse other than law office failure must be proffered.
(See Bruno v Village of Port Chester, 77 AD2d 580.) But where the delay is relatively brief, a defendant’s default may sometimes be excused, even if an equivalent delay by a plaintiff could not be. Thus, in recent cases, we have vacated default judgments even though the excuse for the delay in answering could be characterized as law office failure. (See Eaton v Equitable Life Assur.
Soc. of U. S., 81 AD2d 653; Cockfield v Apotheker, 81 AD2d 651.) A fortiori, the courts enjoy the discretion to excuse a brief delay in answering, where the defendant serves his pleading, and makes application to the court, before a default judgment is entered. (See Sequoia Constr.
Corp. v Hunt, 78 AD2d 695; Williams v City of New York, 85 AD2d 633.) The facts of this case suggest that plaintiff’s counsel would have been better served by accepting the defendant’s late answer, than by seeking to take advantage of a technical default. Certainly, Special Term cannot be faulted for having exercised its discretion so as to permit the case to be disposed of on the merits. Hopkins, J. P., Rabin and O’Connor, JJ., concur.
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