PHILLIPS v. LEAGUE FOR THE HARD OF HEARING

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Supreme Court, Appellate Division, First Department, New York.

Chato P. PHILLIPS, Plaintiff-Appellant, v. The LEAGUE FOR THE HARD OF HEARING, etc., Defendant-Respondent.

Decided: October 22, 1998

Before MILONAS, J.P., WILLIAMS, ANDRIAS and SAXE, JJ. Plaintiff-Appellant, Pro Se. Vincent A. Suba, for Defendant-Respondent.

Order, Supreme Court, New York County (Diane Lebedeff, J.), entered on or about August 29, 1997, which denied plaintiff's motion for a default judgment, unanimously affirmed, without costs.

Assuming arguendo that defendant's answer was four days late, plaintiff's retention of defendant's answer for some six weeks without objection, during which time plaintiff responded to the answer by apparently repleading his causes of action and served a bill of particulars and authorizations for medical and employment records, constituted a waiver of any claim that the answer was not timely served (see, Wittlin v. Schapiro's Wine Co., 178 A.D.2d 160, 161, 576 N.Y.S.2d 580).

MEMORANDUM DECISION.