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Matter of Bolofsky v. City of N.Y.

Respondents' Pre-Answer Motion to Dismiss Extends Petitioner's Right to Amend Petition

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 Motion sequence nos. 001 and 002 are consolidated for disposition herein.This special proceeding arises out of requests for transcripts of proceedings before the New York City Parking Violations Bureau. In lieu of answering the petition, respondents’ cross-move in motion sequence no. 001 for an order, pursuant to CPLR §3211 (a) (3), dismissing the petition on the ground that petitioner lacks standing. Petitioner cross-moves, pursuant CPLR §3215, for leave to enter a default judgment against respondents. In motion sequence no. 002, petitioner moves, pursuant to CPLR §3025, for leave to serve a second amended verified petition and to compel respondents to accept service thereof. For the reasons set forth below, respondents’ cross-motion for dismissal and petitioner’s cross-motion for a default judgment are denied, and petitioner’s motion, improperly denominated a “cross motion,” to amend the petition is granted.Turning first to petitioner’s cross-motion for a default judgment, CPLR §3215 (a) reads, in part, that “[w]hen a defendant has failed to appear, plead or proceed to trial…the plaintiff may seek a default judgment against him [or her].” The statute applies equally to special proceedings brought under CPLR article 78 (see Matter of Citron v. Curiale, 273 AD2d 183, 184 [1st Dept 2000], lv denied 95 NY2d 766 [2000]). Instead of serving an answer to the petition, respondents cross-moved for dismissal. Where a party serves a pre-answer motion for relief under CPLR §3211 (a) or (b), CPLR §3211 (f) operates to extend the moving party’s time to serve a responsive pleading “until ten days after service of notice of entry of the order.” Thus, absent a determination on respondents’ motion to dismiss, their time to answer the petition has not run. Furthermore, respondents submit, and petitioner does not contest, that petitioner had consented to numerous extensions of time for respondents to answer the petition (affirmation in opposition of Amy J. Weinblatt,

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