Opinion
14197 Index No. 155061/19 Case No. 2020–04936
09-28-2021
Steven HAMMOND, Plaintiff–Respondent, v. EQUINOX HOLDINGS LLC doing business as Equinox Fitness Club, etc., et al., Defendants, Michael Alexander, Defendant–Appellant.
Held & Hines, LLP, Brooklyn (Matthew Grosso of counsel), for appellant. The Law Offices of Neal Brickman, P.C., New York (Ethan Leonard of counsel), for respondent.
Held & Hines, LLP, Brooklyn (Matthew Grosso of counsel), for appellant.
The Law Offices of Neal Brickman, P.C., New York (Ethan Leonard of counsel), for respondent.
Mazzarelli, J.P., Gonza´lez, Scarpulla, Pitt, JJ.
Order, Supreme Court, New York County (Paul A. Goetz, J.), entered on or about October 26, 2020, which, to the extent appealed from, granted plaintiff's motion for a default judgment against defendant Alexander, unanimously reversed, on the law, the facts and as a matter of discretion in the interest of justice, without costs, the motion denied, and Alexander granted 45 days from entry of this order to answer the complaint.
Although Alexander was technically in default by failing to timely answer after appearing, plaintiff's motion for a default judgment should have been denied under the circumstances presented here. It is undisputed that the summons and complaint were never served, and Alexander's motion to change venue plainly evinced his intent to litigate this case on the merits by asserting the defense of truth to the defamation claims (see M & E 73–75 LLC v. 57 Fusion LLC, 121 A.D.3d 528, 995 N.Y.S.2d 4 [1st Dept. 2014] ). Vacatur of the default is consistent with the strong public policy favoring the resolution of cases on the merits (see Chevalier v. 368 E. 148th St. Assoc., LLC, 80 A.D.3d 411, 414, 914 N.Y.S.2d 130 [1st Dept. 2011]; see also Chelli v. Kelly Group, P.C., 63 A.D.3d 632, 633–634, 883 N.Y.S.2d 26 [1st Dept. 2009] ["A client should not be deprived of his day in court by his attorney's neglect or inadvertent error, especially where the other party cannot show prejudice and his position has merit"] [internal quotation marks omitted]).
For the same reasons, we nostra sponte grant Alexander an extension of time to answer or move under CPLR 3012(d) (see Vines v. Manhattan & Bronx Surface Tr. Operating Auth., 162 A.D.2d 229, 556 N.Y.S.2d 337 [1st Dept. 1990] ; see also U.S. Bank N.A. v. Gilchrist, 172 A.D.3d 1425, 1427, 102 N.Y.S.3d 625 [2d Dept. 2019] ).