Opinion
16618N 156818/14
01-12-2016
Kathleen CARMODY, Plaintiff–Appellant, v. 208–210 EAST 31ST REALTY, LLC, Defendant–Respondent.
Law Firm of Alexander D. Tripp, P.C., New York (Alexander D. Tripp of counsel), for appellant. The Law Offices of Jason J. Rebhun, P.C., New York (Jason J. Rebhun of counsel), for respondent.
Law Firm of Alexander D. Tripp, P.C., New York (Alexander D. Tripp of counsel), for appellant.
The Law Offices of Jason J. Rebhun, P.C., New York (Jason J. Rebhun of counsel), for respondent.
Opinion
Order, Supreme Court, New York County (Nancy M. Bannon, J.), entered March 27, 2015, which denied plaintiff's motion for a default judgment against defendant, and granted defendant's cross motion to compel plaintiff to accept its answer, unanimously reversed, on the law, without costs, the motion granted, the cross motion denied, and the matter remanded for an inquest on damages.
The Supreme Court should have granted the default judgment against defendant and denied the cross motion to compel plaintiff to accept an answer, because defendant failed to set forth a reasonable excuse for its default in answering the summons. The record shows that plaintiff served defendant through the Secretary of State on July 14, 2014, and that defendant's property manager received plaintiff's September 4, 2014 letter which had the summons and notice attached. Indeed, the property manager averred in his affidavit that he received the letter and understood that defendant's time to answer was extended until September 12, 2014 (see M.R. v. 2526 Valentine LLC, 58 A.D.3d 530, 531, 871 N.Y.S.2d 131 1st Dept.2009 ). The property manager's conclusory claim that the first attorney he retained “must have dropped the ball” is insufficient to demonstrate a reasonable excuse of law office failure (see Pryce v. Montefiore Med. Ctr., 114 A.D.3d 594, 594–595, 981 N.Y.S.2d 67 1st Dept.2014, citing Galaxy Gen. Contr. Corp. v. 2201 7th Ave. Realty LLC, 95 A.D.3d 789, 790, 945 N.Y.S.2d 298 1st Dept.2012 ).
Moreover, the record shows that defendant's second counsel was aware of the summons and notice on October 29, 2014 and received the November 18, 2014 notice of rejection, but did not seek to compel plaintiff to accept the answer until after plaintiff had moved for a default judgment. Defendant's failure to do anything between November 18, 2014 and January 6, 2015 evinces willfulness even though the length of its delay is not inordinate under the circumstances, and plaintiff failed to satisfy her burden of showing that the delay was prejudicial (see Whittemore v. Yeo, 99 A.D.3d 496, 496–497, 952 N.Y.S.2d 136 1st Dept.2012 ).