KELLY v. CITY OF NEW YORK (2023)

Order, Supreme Court, New York County (Dakota D. Ramseur, J.), entered on or about July 13, 2022, which, insofar as appealed from as limited by the briefs, granted defendants’ motion to dismiss the complaint in part and denied plaintiff's cross-motion for a default judgment, unanimously modified, on the law, to vacate the determination on the motion to dismiss and to remand it to the motion court for further consideration in accordance with our decision, and otherwise affirmed, without costs.

A default judgment is not warranted as against defendants (CPLR 3012[d];  see generally Emigrant Bank v. Rosabianca, 156 A.D.3d 468, 472–473, 67 N.Y.S.3d 175 [1st Dept. 2017]).  Defendants demonstrated a reasonable excuse for the delay in answering or filing a pre-answer motion to dismiss – i.e., complications relating to the Covid–19 pandemic.  In addition, plaintiff does not dispute that defendants have a meritorious defense (see Emigrant Bank, 156 A.D.3d at 473, 67 N.Y.S.3d 175;  Marine v. Montefiore Health Sys., Inc., 129 A.D.3d 428, 429, 9 N.Y.S.3d 580 [1st Dept. 2015]).  For the same reasons, defendants’ motion to dismiss was properly considered even though it was untimely (see e.g. Felix v. Thomas R. Stachecki Gen. Contr., LLC, 107 A.D.3d 664, 666, 966 N.Y.S.2d 494 [2d Dept. 2013];  Arrington v. Bronx Jean Co., Inc., 76 A.D.3d 461, 462, 906 N.Y.S.2d 266 [1st Dept. 2010]).

The decretal paragraph of the motion court decision does not specify which portions of the defendants’ motion to dismiss the court intended to deny.  Moreover, it does not specify what action the court intended to take as to the enumerated paragraphs.  Assuming from the context that the court intended to strike the enumerated paragraphs, we vacate that holding as the defendants did not move to strike.  Moreover, the CPLR does not authorize a court to strike factual allegations except when they are scandalous or prejudicial (CPLR 3024([b])), which was not alleged here.  We remand for further consideration of the motion to dismiss, based on all of the factual allegations in the complaint.