LESLIE GARFIELD CO INC v. EVANS (2025)

Order, Supreme Court, New York County (Louis L. Nock, J.), entered August 28, 2024, which, to the extent appealed from, denied plaintiff's motion for entry of a default judgment, unanimously affirmed, without costs.

Supreme Court providently exercised its discretion in denying plaintiff's motion for a default judgment on its claims seeking recovery of a broker's commission (CPLR 3215[f]).  While plaintiff's submission of the summons with notice, proof of defendant's default, an affidavit of merits setting forth facts constituting the claim, and evidence as to the amount owed on the claim met the criteria of CPLR 3215 (see Rosenstein v. Permanent Mission of the Republic of Sierra Leone to the United Nations, 217 A.D.3d 553, 554, 191 N.Y.S.3d 393 [1st Dept. 2023];  State Farm Mut. Auto. Ins. Co. v. Surgicore of Jersey City, LLC, 195 A.D.3d 454, 455, 149 N.Y.S.3d 68 [1st Dept. 2021]), defendant's opposition sufficed to preclude entry of a default judgment (see Rector v. BDG Gotham Residential, LLC, 209 A.D.3d 509, 509, 176 N.Y.S.3d 619 [1st Dept. 2022]).

Specifically, defendant made the requisite showing of a reasonable excuse for the failure to appear, which plaintiff does not dispute.  Moreover, defendant demonstrated a potentially meritorious defense to the claims (see Galindo v. Keller, 147 A.D.3d 427, 427, 45 N.Y.S.3d 799 [1st Dept. 2017];  M & E 73–75 LLC v. 57 Fusion LLC, 121 A.D.3d 528, 529, 995 N.Y.S.2d 4 [1st Dept. 2014]).  The emails between the parties concerning the underlying transaction and related commission obligation are too equivocal to clearly refute defendant's claims that the parties only had an oral agreement, and that defendant retained discretion to determine the amount of the fee.  The emails do not rebut defendant's potentially meritorious defense to plaintiff's claim for the five percent commission.  Given the unresolved factual and legal issues concerning plaintiff's claims and defendant's defense, plaintiff is not entitled to a default judgment on any part of its claims.