Legal Question in Civil Litigation in New York
in summary judgement case the defendent has answered but the plaintiff has not resopnded to his answer and cross complaint one year mark is with in a week should defendent ask for adjudgaction on the merits of the case
or claim default by plantiff and ask for dismissel with prejudice
1 Answer from Attorneys
No.
First of all, you say you made a cross-claim against the plaintiff. WRONG MOVE.
CPLR 3011 provides:
There shall be a complaint and an answer.
An answer may include a counterclaim against a plaintiff and a
cross-claim against a defendant. A defendant's pleading against another
claimant is an interpleader complaint, or against any other person not
already a party is a third-party complaint. There shall be a reply to a
counterclaim denominated as such, an answer to an interpleader complaint
or third-party complaint, and an answer to a cross-claim that contains a
demand for an answer. If no demand is made, the cross-claim shall be
deemed denied or avoided. There shall be no other pleading unless the
court orders otherwise.
So if you denominated your pleading as "Answer" or "Answer with Cross-Claim" then you waived a reply and the pleading is deemed denied. And I know of no surer way to make the judge dislike you than trying to turn a technical mistake into a victory. The judge will punish you for wasting her time. Stick to the merits or go home.