Casey, J. P. (concurring in part and dissenting in part). Supreme Court’s order granted plaintiff permission to file the affidavits of service nunc pro tunc. By deleting the phrase nunc pro tunc, the majority has simply granted plaintiff permission to file proof of service. Plaintiff, however, filed proof of service in July 1989. The majority has therefore given plaintiff permission to do that which she has already done. Since the late filing is concededly a mere irregularity, the defect in the late filing should be disregarded if a substantial right of a party is not prejudiced (CPLR 2001). The prejudice to defendants Marie Ricciardi, Christine Mercora and Fredrick D’Arco (hereinafter collectively referred to as defendants) arose out of the default judgment, but defendants were not in default when the default was taken since service was not complete until proof of service was filed (CPLR 308 [4]) regardless of whether the filing was timely or late. The judgment entered on the default, therefore, is a nullity and must be vacated. As a result, defendants will not be prejudiced if the defect in plaintiff’s late filing of proof of service is disregarded.
A review of the record reveals that defendants included an *939answer in their papers served in support of their motion to vacate the default judgment. Thus, by giving defendants an opportunity to serve an answer, the majority has given defendants the opportunity to do that which they have already done.
An order reversing Supreme Court’s denial of defendants’ motion to vacate the default judgment and granting the motion to vacate would have the effect of placing the parties in the position they were in when plaintiff took the default. At that point, defendants were not in default because service had just been completed by the late filing of proof of service (CPLR 308 [4]) and defendants’ 20 days to answer (CPLR 3012 [a]) had not yet run. Since defendants will effectively be placed in a position where they are not in default, and since defendants included an answer in the papers which they served in support of their motion to vacate the default judgment, the net effect of an order by this court granting defendants’ motion will be to have issue joined, and the matter can proceed to a proper resolution on the merits. Accordingly, Supreme Court’s order should be reversed in its entirety, defendants’ motion to vacate the default judgment should be granted, and plaintiffs cross motion to cure the defect in the late filing of proof of service should be denied as unnecessary.
Ordered that the order is modified, on the law, without costs, by reversing so much thereof as denied the motion by defendants Marie Ricciardi, Christine Mercora and Fredrick D’Arco to vacate the default judgment entered against them and deleting the phrase nunc pro tunc therefrom; motion granted and default judgment entered against said defendants vacated; and, as so modified, affirmed.