Derick Petersen, Plaintiff(s) v. LLC (2026)

Upon the foregoing cited papers, the Decision/ Order on the motion and order to show cause) is:

Defendant had moved to dismiss this case on or about March 23, 2026, and plaintiff opposed same, on or about April 1, 2026. On April 9, 2026, this court granted defendant's motion to dismiss this case on default of plaintiff. Following this dismissal, on or about April 14, 2026, plaintiff moved by way of Order to Show Cause ("OSC") to restore this case to the calendar.

Plaintiff's OSC to restore is hereby granted and this case is restored to the calendar. Plaintiff supplied reasonable excuse for his default of April 9, 2026, which he puts down to 'confusion and misunderstanding regarding the relevant dates and procedural posture of the matter, rather than willful default." Further, plaintiff has diligently litigated this case from the start, including filing Notice of Unavailability on April 10, 2026, which is the very next day after the default order of April 9, 2026, advising the court of days he would be unavailable for appearance. This goes to further support plaintiff's position that his default was an excusable error. The court further finds that plaintiff has stated meritorious claim.

Now, moving to defendant's motion to dismiss this case, that motion is DENIED. Defendant fails to articulate any reason why the case should be dismissed, other than stating that the amended complaint contains no factual details/allegations to sufficiently state a claim. The court finds that the amended complaint contains enough factual details to "apprize defendants of the alleged wrongs". See Selechnik v. Law Office of Howard R. Birnbach, 82 AD3d 1077 at 1079, 920 N.Y.S.2d 126 (2nd Dept 2011) (quoting DDJ Mgt., LLC v. Rhone Group L.L.C., 78 AD3d 442, 443, 911 N.Y.S.2d 7) (holding that a complaint is only required to apprize defendants of the alleged wrongs).

Complaints need not lay out every conceivable allegation that plaintiff intends to rely upon to prove his/her case. See Isaacs v Washougal Clothing Co., 233 A.D.568, 253 N.Y.S. 387 (4th Dept 1931) (holding that pleading is sufficient if facts necessary to make out cause of action can fairly be gathered from the complaint.) "Pleadings should not be front-loaded with evidence, as the pleading stage is not the point in litigation where evidence is presented and actions are tried." Pisula v. Roman Catholic Archdiocese of New York, 201 AD3d 88, 159 N.Y.S.3d 458 (2nd Dept. 2021).

Further, plaintiff's affidavit in opposition to the motion to dismiss provided more factual basis for his claims. In dealing with a motion to dismiss "a court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint" ' Selechnik v. Law Office of Howard R. Birnbach, 82 AD3d 1077, 920 N.Y.S.2d 126 (2nd Dept 2011) (quoting Leon v. Martinez, 84 NY2d at 88, 614 N.Y.S.2d 972, 638 N.E.2d 511).

Accordingly, it is

ORDERED that plaintiff's motion to restore is GRANTED, and it is further

ORDERED that defendant's motion to dismiss is DENIED.

This constitutes the Decision and Order of this court.

Date: 06/11/2026

Hon. Chidi A. Eze

Civil Court Judge (NYC)

Chidi A. Eze, J.