From Casetext: Smarter Legal Research

Rector v. BDG Gotham Residential, LLC

Supreme Court of New York, First Department
Oct 13, 2022
209 A.D.3d 509 (N.Y. App. Div. 2022)

Opinion

16442 Index No. 158261/19 Case No. 2021-01954

10-13-2022

Robin RECTOR, Plaintiff–Appellant, v. BDG GOTHAM RESIDENTIAL, LLC, et al., Defendants, BDG Gotham Affordable, LLC, Defendant–Respondent. [and a Third-Party Action]

G. Wesley Simpson PC, Brooklyn (G. Wesley Simpson of counsel), for appellant. Armienti, DeBellis & Rhoden, LLP, New York (Vanessa M. Corchia of counsel), for respondent.


G. Wesley Simpson PC, Brooklyn (G. Wesley Simpson of counsel), for appellant.

Armienti, DeBellis & Rhoden, LLP, New York (Vanessa M. Corchia of counsel), for respondent.

Renwick, J.P., Friedman, Singh, Shulman, Higgitt, JJ.

Order, Supreme Court, New York County (James Edward D'Auguste, J.), entered on or about January 26, 2021, which denied plaintiff's motion for a default judgment against defendant BDG Gotham Affordable, LLC (BDG), unanimously affirmed, without costs.

The court providently denied plaintiff's motion for a default judgment. Even if plaintiff had established prima facie entitlement to a default judgment pursuant to CPLR 3215(f) through competent proof of the facts constituting her claims (see Woodson v. Mendon Leasing Corp., 100 N.Y.2d 62, 70, 760 N.Y.S.2d 727, 790 N.E.2d 1156 [2003] ), BDG's opposition sufficed to preclude a default judgment. It was reasonable that BDG's delay in answering was due to delay by the insurer and/or the misimpression that BDG's interests were being protected by the carrier representing the other BDG-related entities, and the record suggests that there was confusion as to whether the correct carrier was Zurich as opposed to Travelers (see Rodriguez v. Dixie N.Y.C., Inc., 26 A.D.3d 199, 810 N.Y.S.2d 34 [1st Dept. 2006] ; Heskel's W. 38th St. Corp. v. Gotham Constr. Co. LLC, 14 A.D.3d 306, 787 N.Y.S.2d 285 [1st Dept. 2005] ; Parker v. I.E.S.I. N.Y. Corp., 279 A.D.2d 395, 720 N.Y.S.2d 59 [1st Dept. 2001] ).

Plaintiff also failed to demonstrate prejudice based on BDG's delay, or that such delay otherwise hindered the preparation of her case. Nor was BDG's default predicated on willful or deliberate conduct, and public policy favors the determination of cases on the merits (see Heskel's W. 38th St. Corp., 14 A.D.3d at 307, 787 N.Y.S.2d 285 ). Moreover, BDG advanced "a potentially meritorious defense" ( M & E 73–75 LLC v. 57 Fusion LLC, 121 A.D.3d 528, 995 N.Y.S.2d 4 [1st Dept. 2014] ) to plaintiff's action through evidence reflecting that plaintiff allegedly sustained injury on an escalator situated in the commercial parcel of the subject premises, which was owned and managed by other related entities, and the residential parcel, owned and soon-to-be operated by BDG, had not yet been built at the time of plaintiff's accident.

We have considered plaintiff's remaining arguments and find them unavailing.


Summaries of

Rector v. BDG Gotham Residential, LLC

Supreme Court of New York, First Department
Oct 13, 2022
209 A.D.3d 509 (N.Y. App. Div. 2022)
Case details for

Rector v. BDG Gotham Residential, LLC

Case Details

Full title:Robin Rector, Plaintiff-Appellant, v. BDG Gotham Residential, LLC, et al.…

Court:Supreme Court of New York, First Department

Date published: Oct 13, 2022

Citations

209 A.D.3d 509 (N.Y. App. Div. 2022)
2022 N.Y. Slip Op. 5774
176 N.Y.S.3d 619

Citing Cases

Harrell v. N.Y.C.

Thus, in light of deciding matters on the merits, the relatively short delay in time for filing and serving…