RECTOR v. [and a Third-Party Action] (2022)

Order, Supreme Court, New York County (James Edward D'Auguste, J.), entered on or about January 26, 2021, which denied plaintiff's motion for a default judgment against defendant BDG Gotham Affordable, LLC (BDG), unanimously affirmed, without costs.

The court providently denied plaintiff's motion for a default judgment.  Even if plaintiff had established prima facie entitlement to a default judgment pursuant to CPLR 3215(f) through competent proof of the facts constituting her claims (see Woodson v. Mendon Leasing Corp., 100 N.Y.2d 62, 70, 760 N.Y.S.2d 727, 790 N.E.2d 1156 [2003]), BDG's opposition sufficed to preclude a default judgment.  It was reasonable that BDG's delay in answering was due to delay by the insurer and/or the misimpression that BDG's interests were being protected by the carrier representing the other BDG-related entities, and the record suggests that there was confusion as to whether the correct carrier was Zurich as opposed to Travelers (see Rodriguez v. Dixie N.Y.C., Inc., 26 A.D.3d 199, 810 N.Y.S.2d 34 [1st Dept. 2006];  Heskel's W. 38th St. Corp. v. Gotham Constr. Co. LLC, 14 A.D.3d 306, 787 N.Y.S.2d 285 [1st Dept. 2005];  Parker v. I.E.S.I. N.Y. Corp., 279 A.D.2d 395, 720 N.Y.S.2d 59 [1st Dept. 2001]).

Plaintiff also failed to demonstrate prejudice based on BDG's delay, or that such delay otherwise hindered the preparation of her case.  Nor was BDG's default predicated on willful or deliberate conduct, and public policy favors the determination of cases on the merits (see Heskel's W. 38th St. Corp., 14 A.D.3d at 307, 787 N.Y.S.2d 285).

Moreover, BDG advanced “a potentially meritorious defense” (M & E 73–75 LLC v. 57 Fusion LLC, 121 A.D.3d 528, 995 N.Y.S.2d 4 [1st Dept. 2014]) to plaintiff's action through evidence reflecting that plaintiff allegedly sustained injury on an escalator situated in the commercial parcel of the subject premises, which was owned and managed by other related entities, and the residential parcel, owned and soon-to-be operated by BDG, had not yet been built at the time of plaintiff's accident.

We have considered plaintiff's remaining arguments and find them unavailing.