On October 24, 2023, the First Department issued a decision in U.S. Bank N.A. v. Barker Project LLC, 2023 NY Slip Op, 05384, holding that a delay caused by negotiations with defendant does not justify late service, explaining:
CPLR 3012(d) provides that a court has the discretionary power to extend the time to plead, or to compel acceptance of an untimely pleading upon such terms as may be just, provided that there is a showing of a reasonable excuse for the delay. The following factors must be considered and balanced’ in determining whether a CPLR 3012 (d) ruling constitutes an abuse of discretion. Those factors include the length of the delay, the excuse offered, the extent to which the delay was willful, the possibility of prejudice to adverse parties, and the potential merits of any defense.
Defendants based their good cause on the fact that counsel purportedly engaged in communications with attorneys, whom she believed represented plaintiff, on August 10, 2021 – even before the service of process on defendants was effectuated, without providing any details about, or substantiation of, these alleged communications. This Court has found that settlement negotiations alone are an insufficient excuse for delay. Since defendants failed to demonstrate either good cause or a reasonable excuse for the delay in answering, the motion for leave to file a late answer was providently denied.
(Internal quotations and citations omitted).