Late filing after 5 p.m. on due date excused, default vacated.
By Loft Board rule, a party who has not filed a timely answer will be declared in default and will be barred from participation at the hearing, unless the party files an application to be relieved from default within 30 days from the date of mailing of the default determination.
To be relieved of the default, the application must show that good cause existed for the failure to file an answer and it must present a non-frivolous defense.
In a case concerning an unreasonable interference application, ALJ Joan Salzman granted the building owner's application to vacate her default.
The Loft Board had rejected the owner's answer as untimely when she filed it by fax on the day it was due, but after the Board's offices were closed for the day. The Board date-stamped the answer as received the next morning.
The respondent had understood the Board's deadline rule to mean that a submission would be timely if it was faxed before midnight on the day it was due.
ALJ Salzman found that the respondent's reading of the Board's rule was reasonable since the rule does not specify close of business as the deadline. She also found respondent presented a non-frivolous defense to the petition. Matter of Weadick (in PDF), OATH Index No. 1555/08, mem. dec. (Feb. 22, 2008).