"Whether a proffered excuse is ‘reasonable’ is a ‘sui generis determination to be made by the court based on all relevant factors, 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’ " ( Fried v. Jacob Holding, Inc., 110 A.D.3d at 60, 970 N.Y.S.2d 260, quoting Harcztark v. Drive Variety, Inc., 21 A.D.3d 876, 876–877, 800 N.Y.S.2d 613 ). Here, the appellants satisfied their CPLR 3215 burden of proving service of process, the facts constituting the claim, and the default of the estate and the Kelbers in answering the complaint within 10 days of being served with, inter alia, a copy of the consent order withdrawing their pre-answer motion to dismiss (see CPLR 3211[f] ; 3215; Weber v. Peller, 82 A.D.3d 1331, 1332, 918 N.Y.S.2d 241 ; ABS 1200, LLC v. Kudriashova, 60 A.D.3d 1164, 1165, 874 N.Y.S.2d 336 ). However, considering the appropriate factors and the strong public policy in favor of resolving cases on the merits, the Surrogate's Court providently exercised its discretion in denying the appellants' motion for leave to enter a default judgment against the estate and the Kelbers, and permitting them to file a late answer.
Plaintiff served notice of entry of the order denying defendant's pre-answer motion to dismiss on October 4, 2022 (NYSCEF Doc No. 35). Plaintiff has established that defendant failed to serve an answer after the 10-day period afforded under CPLR 3211 (f) expired, and that defendant is now in default (see Weber v Peller, 82 A.D.3d 1331, 1332 [3d Dept 2011] [failure to serve an answer within 10 days after service of notice of entry of the order deciding a pre-answer motion constituted a default]; Rotondo v Reeves, 192 A.D.2d 1086, 1086 [4th Dept 1993] [granting a default judgment on liability where the defendants failed to serve an answer within 10 days after service of the order determining their motion to dismiss]). Furthermore, defendant's appearance obviates the requirement under CPLR 3215 (g) (3) (i) that plaintiff serve defendant with additional notice of the action before a default judgment may be entered (see Paulus v Christopher Vacirca, Inc., 128 A.D.3d 116, 121 [2d Dept 2015] [stating that CPLR 3215 (g) (3) (i) requires additional notice to be provided to a defendant who has never appeared in an action]).
Where an application such as the instant one is proffered to the Court, it is incumbent upon the movant to provide an explanation that is both credible and replete with specific details, Vujanic v. Petrovic 103 AD3d 791 (2nd Dept. 2013) . Where as, here, there has been a failure to offer up such an excuse for the delay, vacatur is clearly not warranted, Weber v. Peller 82 AD3d 1331 (3rd Dept. 2011) . Plaintiff's counsel has failed to advance any colorable excuse for its delay in this matter.
Where an application such as the instant one is proffered to the Court, it is incumbent upon the movant to provide an explanation that is both detailed and credible, Vujanic v. Petrovic 103 AD3d 791 (2nd Dept. 2013) . Where as, here, there has been a failure to offer up an excuse for the delay, vacatur is clearly not warranted, Weber v. Peller 82 AD3d 1331 (3rd Dept. 2011) . In assessing the reasonableness of the excuse proffered, the Court can consider the length of time that has elapsed between the rendition of the order at issue and the application to vacate (in this case, over 40 months), Dominguez v. Carioscia 1 AD3d 396 (2nd Dept. 2003) .
Where an application such as the instant one is proffered to the Court, it is incumbent upon the movant to provide an explanation that is both detailed and credible, Vujanic v. Petrovic 103 AD3d 791 (2nd Dept. 2013) . Where as, here, there has been a failure to offer up an excuse for the delay, vacatur is clearly not warranted, Weber v. Peller 82 AD3d 1331 (3rd Dept. 2011) .
"Given the insufficiency of [Defendants'] submission concerning a reasonable excuse for the[ir] default, it is not necessary to address whether defendants have] a meritorious defense to the action." (Kranenburg v Butwell, 34 AD3d 1005, 1006 [3d Dept 2006], Weber v Peller, 82 AD3d 1331 [3d Dept 2011]).