Opinion
No. 2020-00439
06-15-2022
Taisiya Aleksandrovna Jacobson, appellant, v. Anna Val, etc., respondent, et al., defendants. (File No. 2370/05)
Dealy Silberstein & Braverman, LLP, New York, NY (Laurence Lebowitz of counsel), for appellant.
Dealy Silberstein & Braverman, LLP, New York, NY (Laurence Lebowitz of counsel), for appellant.
BETSY BARROS, J.P. CHERYL E. CHAMBERS, JOSEPH J. MALTESE, PAUL WOOTEN, JJ.
DECISION & ORDER
In an action, inter alia, to recover damages for fraud and breach of fiduciary duty, which was transferred from the Supreme Court, Kings County, to the Surrogate's Court, Kings County, the plaintiff appeals from an order of the Surrogate's Court, Kings County (Margarita López Torres, S.), dated May 31, 2019. The order denied the plaintiff's motion for leave to enter a default judgment against the defendant Anna Val, individually and as administrator of the estate of Alexander Bebko, and granted that defendant's cross motion to extend her time to file and serve an answer.
ORDERED that the order is affirmed, without costs or disbursements.
The plaintiff commenced this action against, among others, the defendant Anna Val, individually and as administrator of the estate of Alexander Bebko (hereinafter the defendant). The plaintiff thereafter moved for leave to enter a default judgment against the defendant on the ground that the defendant had failed to serve a timely answer. The defendant opposed the motion and cross-moved to extend her time to file and serve an answer. The Surrogate's Court denied the motion and granted the cross motion. The plaintiff appeals.
"A defendant who has failed to timely answer a complaint and who seeks leave to file a late answer must provide a reasonable excuse for the delay and demonstrate a potentially meritorious defense to the action" (Bank of Am., N.A. v Viener, 172 A.D.3d 795, 796; see Patel v New York City Tr. Auth., 199 A.D.3d 925, 926). In determining if there is a reasonable excuse for a default, several relevant factors should be taken into consideration, "including the extent of the delay, whether there has been prejudice to the opposing party, whether there has been willfulness, and the strong public policy in favor of resolving cases on the merits" (Harcztark v Drive Variety, Inc., 21 A.D.3d 876, 877; see JE & MB Homes, LLC v U.S. Bank N.A., 189 A.D.3d 1195, 1196). "The court has discretion to accept law office failure as a reasonable excuse where the claim is supported by a detailed and credible explanation of the default" (Option One Mtge. Corp. v Rose, 164 A.D.3d 1251, 1252 [citation omitted]; see Muhammed v Federal Express Corp., 199 A.D.3d 695, 695).
Here, the Surrogate's Court providently exercised its discretion in determining that the defendant's excuse for her delay in answering due to law office failure was reasonable. The defendant's attorney explained in his affirmation that he failed to make an entry in his office calendaring system (see Ferreira v Singh, 176 A.D.3d 782, 784; Bank of N.Y. Mellon v Faragalla, 174 A.D.3d 677, 678-679; B & H Fla. Notes LLC v Ashkenazi, 172 A.D.3d 433, 434; Riccardi v Otero, 33 A.D.3d 571, 572; Dokmecian v ABN AMRO N. Am., 304 A.D.2d 445, 445). Moreover, given the strong public policy in favor of resolving cases on the merits, the absence of prejudice to the plaintiff, and the defendant's lack of intent to abandon the case, the court acted properly in denying the plaintiff's motion for leave to enter a default judgment against the defendant and in granting the defendant's cross motion to extend her time to file and serve an answer (see Colucci v Gardiners Props., 187 A.D.3d 844, 846; Merilus v Nassau Inter County Express [NICE], 187 A.D.3d 739, 740; Hamilton v New York Hosp. Queens, 183 A.D.3d 621, 623; Mid-Hudson Props., Inc. v Klein, 167 A.D.3d 862, 864-865). Furthermore, the record sufficiently establishes the existence of a potentially meritorious defense.
The plaintiff's contention regarding the defendant's failure to include an affidavit of merit in opposition to the plaintiff's motion and in support of her cross motion is improperly raised for the first time on appeal (see Storchevoy v Blinderman, 303 A.D.2d 672, 673; Whitler Contr. Corp. v City of N.Y. [Rehabilitation of Fence & Walls], 161 A.D.2d 484).
BARROS, J.P., CHAMBERS, MALTESE and WOOTEN, JJ., concur.