WASTE MANAGEMENT OF NEW YORK INC v. BEDFORD STUYVESANT RESTORATION CORPORATION (2004)

In an action, inter alia, to recover in quantum meruit for the value of work, labor, services, and materials, and based upon an account stated, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (McCarty, J.), entered February 27, 2003, as, upon renewal, adhered to a prior determination in an order dated January 23, 2003, denying their motion to vacate an order of the same court dated September 17, 2002, which had, upon their default in opposing the motion, granted the plaintiff's motion for summary judgment.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, upon renewal, the motion to vacate is granted, and the order dated September 17, 2002, is vacated.

A defendant may obtain relief from a default by demonstrating a reasonable excuse for the default and a meritorious defense to the action (see CPLR 5015 [a][1];  Vlachos v. Saueracker, 10 A.D.3d 683, 782 N.Y.S.2d 104;  Juarbe v. City of New York, 303 A.D.2d 462, 756 N.Y.S.2d 427).   Contrary to the determination of the Supreme Court, upon renewal, the defendants met their burden.   There is ample support in the record for the defendants' contention that they were not served with the plaintiff's motion for summary judgment (see Bianco v. Ligreci, 298 A.D.2d 482, 748 N.Y.S.2d 503;  Crooks v. Lear Taxi Corp., 136 A.D.2d 452, 522 N.Y.S.2d 867;  Golden v. Golden, 128 A.D.2d 672, 673, 513 N.Y.S.2d 171).   We note that the defendants vigorously defended this action and showed no intention to abandon their defense (see Orwell Bldg. Corp. v. Bessaha, 5 A.D.3d 573, 773 N.Y.S.2d 126, lv. denied 3 N.Y.3d 703, 785 N.Y.S.2d 30, 818 N.E.2d 672).   Furthermore, the defendants made a sufficient showing of a meritorious defense (see Ray Realty Fulton, Inc. v. Kwang Hee Lee, 7 A.D.3d 772, 776 N.Y.S.2d 864).   The plaintiff failed to establish with precision the actual amounts allegedly due (see Neuman Distribs. v. Pharmedix, Inc., 289 A.D.2d 546, 548, 736 N.Y.S.2d 51;  Burt Millwork Corp. v. Irpinia Constr. Corp., 173 A.D.2d 433, 435, 570 N.Y.S.2d 58), and the defendants proffered copies of numerous checks suggesting at least partial payment.   Accordingly, upon renewal, the defendants' motion to vacate should have been granted and the matter should be determined on the merits.