Opinion
14604 Index No. 655993/18 Case No. 2021-01969
11-09-2021
DASHDEVS LLC, Plaintiff–Appellant, v. CAPITAL MARKETS PLACEMENT, INC., Defendant–Respondent.
Borg Law LLP, New York (Jonathan M. Borg of counsel), for appellant. Long & Associates PLLC, New York (Ryan E. Long of counsel), for respondent.
Borg Law LLP, New York (Jonathan M. Borg of counsel), for appellant.
Long & Associates PLLC, New York (Ryan E. Long of counsel), for respondent.
Renwick, J.P., Singh, Kennedy, Rodriguez, Pitt, JJ.
Order, Supreme Court, New York County (Nancy M. Bannon, J.), entered on or about November 17, 2020, which, inter alia, denied plaintiff's motion for leave to enter a default judgment against defendant Capital Markets Placement, Inc. (CMP) or, in the alternative, for partial summary judgment against CMP, unanimously affirmed, without costs.
Plaintiff's motion for a default judgment against CMP, based on CMP's failure to interpose an answer within 30 days of the court's order vacating a prior default judgment, was properly denied. Neither the CPLR nor the court's vacatur order provided a time by which CMP was required to file its answer following vacatur. The order merely restored the case to the trial calendar and directed the parties to appear for a settlement conference on September 10, 2020.
In any event, plaintiff has failed to show that CMP's two-week delay in answering its complaint, following plaintiff's second motion for a default judgment, caused any prejudice (see Artcorp Inc. v. Citirich Realty Corp., 140 A.D.3d 417, 418, 30 N.Y.S.3d 872 [1st Dept. 2016] ). CMP also quickly responded to plaintiff's motion for a default judgment, showing that it did not intend to abandon the action (see Koren–DiResta Constr. Co. v. CNA Ins. Cos., 176 A.D.2d 567, 568, 574 N.Y.S.2d 741 [1st Dept. 1991] ).
Plaintiff's motion for partial summary judgment on its claims of breach of contract and for an account stated was also properly denied. There remain questions of fact as to whether plaintiff completed its work to CMP's reasonable satisfaction, as required by the contract (see Yellin v. Zimmerman, 162 A.D.3d 454, 455, 75 N.Y.S.3d 34 [1st Dept. 2018] ), and whether CMP retained the invoices without objection (see Morrison Cohen Singer & Weinstein, LLP v. Waters, 13 A.D.3d 51, 786 N.Y.S.2d 155 [1st Dept. 2004] ).