DE RIVAS v. NYC (2025)

Order, Supreme Court, New York County (Eric Schumacher, J.), entered June 27, 2024, which, to the extent appealed from as limited by the briefs, denied plaintiff's motion to vacate an order, same court and Justice, entered April 23, 2024, granting, upon her default, defendant Esplanade 99 LLC's motion for summary judgment dismissing the amended complaint as against it, unanimously reversed, on the law and in the exercise of discretion, without costs, the motion granted, and the matter remitted for further proceedings consistent with this decision.

Supreme Court should have granted plaintiff's motion to vacate the order, entered upon her default, granting Esplanade's summary judgment motion (see generally SOS Capital v. Recycling Paper Partners of PA, LLC, 220 A.D.3d 25, 38–39, 196 N.Y.S.3d 382 [1st Dept. 2023]).  While the parties agreed to a second stipulation to adjourn the return date of Esplanade's motion for more than 60 days, plaintiff failed to properly submit the stipulation to the court (see Uniform Rules for Trial Cts [22 NYCRR] § 202.8[e]). Counsel's belief that an adjournment had been granted amounts to a law office failure, which is a reasonable excuse for the default (Mejia v. Ramos, 113 A.D.3d 429, 430, 979 N.Y.S.2d 281 [1st Dept. 2014] [internal quotation marks omitted]).  “Absent a pattern of dilatory behavior, the default was an excusable, one-time oversight, resulting in no prejudice” (US Bank N.A. v. Richards, 155 A.D.3d 522, 522–523, 65 N.Y.S.3d 178 [1st Dept. 2017]).  Supreme Court failed to articulate any explanation as to why plaintiff's proffered excuse was not reasonable.

Plaintiff also demonstrated a potentially meritorious opposition to the various defenses raised in Esplanade's motion, a burden that is lighter than that which is required to defeat summary judgment (see Berardo v. Guillet, 86 A.D.3d 459, 460, 926 N.Y.S.2d 521 [1st Dept. 2011];  Williams v. City of New York, 71 A.D.3d 605, 606, 897 N.Y.S.2d 99 [1st Dept. 2010];  Vitiello v. Mayrich Constr. Corp., 255 A.D.2d 182, 183, 680 N.Y.S.2d 482 [1st Dept. 1998]).  Accordingly, upon remittal, Supreme Court should determine Esplanade's summary judgment motion on the merits, following briefing by the parties.