Opinion
No. 522911/2021
01-25-2023
JAMES JIANG, SHERRY HOU, and RICH BENEFIT LLC, Plaintiffs, v. TINA HOWE, Defendant,
Unpublished Opinion
PRESENT: HON. LEON RUCHELSMAN
DECISION AND ORDER
Leon. Ruchelsman, JSC
The defendant have moved seeking to vacate an order dated November 18., 2022 granted upon notice of settlement to all parties. The plaintiffs oppose the motion.. Papers were submitted by the parties and arguments held. After reviewing all the arguments this court now makes the following determination,.
On December 22, 2021 the plaintiffs filed a motion seeking a default based on the fact the defendant had not answered the complaint which had been filed August 31, 20.21 (see, NYSCEF Doc. No.10). On January 27, 2 02.2. the defendant filed a etter wherein- she indicated, that she was suffering: from long covid and needed time to review the paperwork and respond (see., NYSCEF Doc. No. 18). Further, on November 29, 2022 the defendant moved seeking to dismiss the complaint for the failure to state any cause of action (Motion Sequence Number 2), That motion included a verified answer. The court entered the default order on the same day and shortly thereafter the defendant filed, this, current motion seeking to vacate the default. The defendant argues she maintains a reasonable excuse for not appearing and has meritorious defenses. The plaintiff counters, the defendant cannot present either a reasonable excuse or any meritorious defense.
Conclusions of Law.
It is well settled that to succeed upon a motion to vacate a default the party must demonstrate a reasonable excuse for the default and a meritorious defense (Golden Mountain Income v. Sdencer Gifts, LLC, 167 A.D.3d 850, 88 N.Y.S.3d 889 [2d Dept., 2018]). The .existence of -law office failure may provide the necessary reasonable excuse as long as the movant presents a detailed and credible explanation of the default (IndvMac Bank, FSB v. Izzo, 166 A.D.3d 866, 89 N.Y.S.3d 196 [2d.Dept., 2018]). In this, case the reasonable excuse presented is essentially that counsel for the defendant made a calendering error and that in any event the defendant has. been suffering, from, long COVID which prevented her attention and participation.
It is true that law office failure may be deemed .a reasonable excuse where there is a "detailed and credible explanation of the default" (see, Servilus v. Walcott, 148 A.D.3d 743, 4.8 N.Y.S.3d 494 [2d Dept., 2017). This is especially true where no prejudice accrues to. any of the parties and the party seeking the default has moved expeditiqusly to vacate the default (American International Insurance Company v. MJM Quality Construction Inc., 69 A.D.3d 520, .895 N.Y.S.2d 35 [1st Dept., 2.010]). Essentially, in this case the defendant's counsel asserts that a calendering error led to: the default..
It. is well settled that miscalendaring dates is a valid demonstration of: law. office failure (First American Title Insurance Company v. Successful Abstract, LLC, _A.D.3d_, 178 N.Y.S.3d 448 [1st Dept., 2022]), Therefore, a reasonable excuse has been presented. Moreover, there has; been no evidence there has been any prejudice to any of the parties. (Sheridan v. Mid-Island Hospital Inc,, 9 A.D.3d .4.90* 781 N.Y.S.2d 366 [2d Dept., 2004], Statewide Insurance Company v. Bradham, 301 A.D.2d 606, 753 N.Y.S.2d 861 [2d Dept., 2003]). In addition, pursuant to CPLR §5015 this motion, made within one year of the default is timely. Furthermore, the defendant; filed a- motion, to dismiss, coincidentally, on the same date the default order was signed,. prior to the entry Of that order. That further demonstrates the defendant's, interest in pursuing this action,.
Further, as noted, the. party must demonstrate a meritorious defense (Mew Century Mortgage Corp. v. Chimmiri, 146 A.D.3d 893, 45, N.Y.S.3d 209 [2d Dept., 2017]). In the instant case, the defendant argues the defendants lack capacity and privity to sue. Substantively, the defendant asserts she did not breach any agreement due to an unfulfilled condition precedent. While of course the validity of these defenses will be explored, through discovery at this juncture meritorious defenses have been presented. Indeed, it. is well settled, that a verified answer from a: party may raise a meritorious defense (see, Lai v. Montes, 182 A.D.3d 646, 121 N.Y.S.2d 431 [3rd Dept., 2020]).
Thus, considering the satisfaction of the above criteria and the preference to decide cases on the merits (Dodge v. Commander, 18 A.D.3d 943, 794 N.Y.S.2d 482 [3rd Dept., 2005]) the motion seeking to vacate, the default is granted. The plaintiffs are now directed to oppose: the. defendant's motion, .seeking dismissal and to notify the court when that motion is. ready for argument.
So ordered.