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Dime Savings Bank v. Pine Drive Associates, Inc.

28 Misc. 2d 648 Court Supreme Court, Special Term, Nassau County, Decision date 1961-02-27 English

Delivered by Mario Pittoni, J.

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p. 648
Dime Savings Bank of Brooklyn, Plaintiff, v. Pine Drive Associates, Inc., et al., Defendants.
Supreme Court, Special Term, Nassau County,
February 27, 1961.
Tannenbaum é Goldweber for Preferred Transmix Concrete, Inc., defendant. William A. Ansalone for plaintiff.

Motion 11 for an order directing the plaintiff to accept the answer of the defendant Preferred Transmix Concrete, Inc.”, is denied.

The movant was served with the summons and complaint on January 9, 1961. The answer was mailed on February 3, 1961, received and returned on February 6. 1961. No affidavit of merits is submitted, nor is any reasonable excuse given for the failure to serve the answer within 20 days after service of the complaint.

p. 649
The observation may be made that the movant, even though it has defaulted in answering in the foreclosure action, is not precluded from proving its lien in a surplus money proceeding (Matter of Lobbett v. Galpin, 228 App. Div. 65 ; Rules Civ. Prac., rules 262, 263).