dissents and votes to reverse the order appealed from, deny the defendant’s motion and grant the plaintiff’s cross motion, in accordance with the following memorandum, with which Lazer J., concurs.
I agree with both the majority and Special Term in that the defendant’s delay in serving its answer was excusable. However, I disagree with the majority’s holding that the defendant has demonstrated in its motion papers, as required (A&J Concrete Corp. v Arker, 54 NY2d 870; Williams v City of New York, 85 AD2d 633; CPLR 2004, 3012 [d]), a meritorious defense to this action.
The plaintiff was employed as a bus driver by the defendant bus company, pursuant to a contract which gave the defendant the right to discharge its employees "for proper cause”. The plaintiff was discharged from his position on July 26, 1983, as a result of a charge of fare irregularities, i.e., it was alleged that he improperly failed to turn in or register the cash fares that he collected from passengers on July 20, 1983. The charge was based on the reports of undercover investigators. The plaintiff instituted a three-tier grievance procedure against the defendant pursuant to their contract and lost at *637each of the three levels. Concurrent thereto, the plaintiff filed a claim for unemployment insurance which was initially denied on July 26, 1983. That determination was overruled by an Administrative Law Judge after a hearing at which the plaintiff and the defendant appeared. At the hearing the plaintiff testified that he had not misappropriated any fares. Rather, it was his testimony that his key, which operated the bus register, was broken, so that the register did not operate properly. He therefore recorded the fares as best he could on a piece of paper, and when he returned to the garage in the evening he recorded them on the register when he was able to get it to work. The defendant contended at the hearing based on the undercover investigator’s reports that the plaintiff committed misconduct by misappropriating fares. The Administrative Law Judge found that "the credible evidence presented at the hearing failed to support” the defendant’s contention. Specifically, the Administrative Law Judge found the plaintiff’s testimony credible, and held that the evidence in opposition thereto, i.e., the undercover investigators’ reports, were merely hearsay and could not prevail against the plaintiffs testimony. Accordingly, the Administrative Law Judge found that the plaintiffs employment "ended under non-disqualifying conditions” and that he was eligible for unemployment benefits. No appeal was taken from this decision, dated April 9, 1984.
In September 1984 the plaintiff commenced the instant action, seeking damages for breach of his employment contract. Specifically, the complaint alleged that the plaintiffs employment was terminated "without just cause”. After the defendant’s default in answering, the plaintiff moved for leave to enter a default judgment against the defendant but that motion was denied with leave to renew. By notice of motion dated September 30, 1985, the defendant moved for an order extending its time to answer and compelling the plaintiff to accept service of the answer. In its moving papers the defendant alleged, as its meritorious defense, that the plaintiffs employment had been terminated for proper cause, in that, as evidenced by the findings at the grievance hearings, he had inexcusably failed to deposit and register cash fares collected from bus passengers on July 20, 1983. By notice of cross motion dated October 17, 1985, the plaintiff cross-moved for leave to enter a default judgment against the defendant.
Special Term granted the defendant’s motion and denied the plaintiffs cross motion, holding, inter alia: "Furthermore, there is a strong showing of a meritorious defense to this *638action; plaintiffs claim that an Administrative Judge’s determination is res judicata is without substance”.
In my view, the affidavit of the defendant’s counsel fails to demonstrate a meritorious defense to the instant action.
In Ryan v New York Tel. Co. (62 NY2d 494), the plaintiff Edward Ryan was discharged from his employment with the defendant New York Telephone Company for theft of company property after allegedly being observed by company security investigators removing what appeared to be company property from the workplace. Mr. Ryan was thereafter arrested and charged with petit larceny and criminal possession of stolen property. Following his discharge from work, Mr. Ryan filed for unemployment insurance benefits, but his application was rejected by a claims examiner of the Department of Labor on the ground that the discharge was the result of his own misconduct. Mr. Ryan appealed this initial adverse determination, and obtained a hearing before an Unemployment Insurance Administrative Law Judge. After considering the testimony of all the witnesses, the Administrative Law Judge sustained the ruling of the claims examiner and disallowed benefits finding, inter alia, that Mr. Ryan " Tost his employment due to misconduct’ ” (Ryan v New York Tel Co., supra, p 498). This determination was subsequently affirmed by the Unemployment Insurance Appeal Board and sustained by the Appellate Division. Ultimately, the criminal charges against Mr. Ryan were dismissed. Thereafter, he commenced an action to recover damages for false arrest, malicious prosecution, slander and wrongful discharge. The defendants pleaded an affirmative defense of res judicata and collateral estoppel on the basis of the prior administrative determination denying Mr. Ryan’s claim for unemployment benefits. Mr. Ryan moved to strike the affirmative defense and the defendants cross-moved to dismiss the aforementioned causes of action. In granting the defendants’ cross motion to dismiss and denying the motion to strike the affirmative defense of res judicata and collateral estoppel, the Court of Appeals held as follows:
"At the outset, it should be made clear that the doctrines of res judicata and collateral estoppel are applicable to give conclusive effect to the quasi-judicial determinations of administrative agencies (Matter of Evans v Monaghan, 306 NY 312, 323-324; Parklane Hosiery Co. v Shore, 439 US 322; see, also, Restatement, Judgments 2d § 83), when rendered pursuant to the adjudicatory authority of an agency to decide cases brought before its tribunals employing procedures substan*639tially similar to those used in a court of law. (Matter of Venes v Community School Bd., 43 NY2d 520, 524; United States v Utah Constr. Co., 384 US 394, 212; see, also, 2 Davis, Administrative Law [3d ed] §§ 18.03, 18.08, 18.10; Restatement, Judgments 2d, § 83, subd [2], and Comment b.) '[S]uch determinations, when final, become conclusive and binding on the courts.’ (Bernstein v Birch Wathen School, 71 AD2d 129, 132, affd 51 NY2d 932; see, also, Matter of Newsday, Inc. v Ross, 80 AD2d 1, 5.) * * *
"In the application of collateral estoppel with respect to administrative determinations, the burden rests upon the proponent of collateral estoppel to demonstrate the identically and decisiveness of the issue, while the burden rests upon the opponent to establish the absence of a full and fair opportunity to litigate the issue in prior action or proceeding. (Cf. Schwartz v Public Administrator [24 NY2d 65] supra, at p 73; see, also, B.R. DeWitt, Inc. v Hall, 19 NY2d 141; compare Gramatan Home Investors Corp. v Lopez [46 NY2d 481] supra, at p 485.) As we said in Schwartz, '[t]his apportionment of the burdens is both fair and necessary. Otherwise much of the value of collateral estoppel will be lost’. (Id., at p 73.) Indeed, this apportionment accords, on the one hand, with the burden generally imposed on the moving party to make a prima facie demonstration of entitlement to summary judgment (see, e.g., Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067), and, on the other hand, with the burden placed on the opposing party to establish the necessity for a trial (Zuckerman v City of New York, 49 NY2d 557, 562) or on any party attempting to rebut the presumptive regularity of prior judicial and administrative proceedings (see 21 NY Jur, Evidence, §§ 106, 108; 10 Carmody-Wait 2d, NY Prac, §§ 70:346, 70:347; cf. People v Harris, 61 NY2d 9, 16).
"Applying the foregoing rules of law to this case demonstrates clearly that collateral estoppel bars plaintiffs from litigating the subject claims. A comparison of the material issues raised in this action with those resolved by the prior administrative determination, and an examination of the prior proceeding itself show that both requisite criteria, the identicality and decisiveness of the issues and the opportunity for a full and fair hearing have been satisfied” (Ryan v New York Tel. Co., 62 NY2d 494, 499, 501, 502, supra).
The holding of Ryan v New York Tel. Co. (supra) is clearly applicable to the case at bar.
The crucial issue in the prior administrative proceeding was whether the plaintiff was discharged by reason of certain *640specific misconduct arising out of the July 20, 1983, incident, as claimed by the defendant, and therefore not entitled to unemployment benefits. The Administrative Law Judge specifically found, based on the credible evidence, that the plaintiff was not guilty of such misconduct as claimed by the defendant. That determination is conclusive between the parties to this action who appeared at the hearing before the Administrative Law Judge, and is dispositive of the defense of discharge for proper cause arising out of the July 20, 1983, incident, which the defendant now seeks to interpose in its late answer. Additionally, the record shows that the defendant had "a full and fair opportunity at the prior administrative proceeding to litigate the question of [the plaintiff’s] misconduct” and the defendant has "failed to demonstrate otherwise” (Ryan v New York Tel Co., supra, p 503). Therefore defendant is precluded by the principle of collateral estoppel from defending the instant action based on the defense of discharge for proper cause arising out of the July 20, 1983, incident (see also, Samhammer v Home Mut. Ins. Co., 120 AD2d 59).
By referring to the decisions in Parker v Borock (5 NY2d 156), Arizaga v New York Health & Hosps. Corp. (96 AD2d 457), and Meyers v Sunnydale Farms (NYLJ, Sept. 9, 1986, p 14, cols 3-6; p 15, col 1 [Sup Ct, Kings County, Morton, J.]). the majority is apparently of the view that a second meritorious defense can be demonstrated in this case, i.e., the plaintiff’s lack of standing to bring the action. However, that defense is not specifically raised in the defendant’s moving papers, and indeed, the defendant’s proposed answer, annexed to its motion papers, does not contain such a defense. Accordingly, it has been waived (CPLR 3211 [a] [3]; [e]; Matter of Prudco Realty Corp. v Palermo, 60 NY2d 656).
In conclusion, since the defendant has failed in its motion papers to demonstrate a meritorious defense to the instant action, its motion for an extension of time to answer should be denied and the plaintiff’s cross motion for leave to enter a default judgment against the defendant should be granted.