BACOVA v. CITY OF NEW YORK (2024)

DECISION & ORDER

In an action to recover damages for injury to real property, the plaintiffs appeal from an order of the Supreme Court, Kings County (Gina Abadi, J.), dated March 31, 2022.  The order, insofar as appealed from, denied that branch of the plaintiffs’ motion which was for leave to enter a default judgment against the defendant City of New York and granted that branch of that defendant's cross-motion which was pursuant to CPLR 3012(d) to compel the plaintiffs to accept its late answer.

ORDERED that the order is affirmed insofar as appealed from, with costs.

In 2020, certain real property owned by the plaintiffs allegedly was damaged due to nearby excavation work occurring near that property.  The plaintiffs commenced this action against, among others, the City of New York to recover damages for injury to the property and served the City with the summons and complaint on May 18, 2021.  Upon the City's failure to timely interpose an answer, the plaintiffs moved, inter alia, for leave to enter a default judgment against the City on July 19, 2021.  The City interposed an answer on August 24, 2021, which the plaintiffs rejected as untimely.  The City opposed the plaintiff's motion and cross-moved, among other things, pursuant to CPLR 3012(d) to compel the plaintiffs to accept its late answer.  The Supreme Court denied that branch of the plaintiffs’ motion and granted that branch of the City's cross-motion.  The plaintiffs appeal.

“Upon the application of a party, the court may extend the time to appear or plead, or compel the acceptance of a pleading untimely served, upon such terms as may be just and upon a showing of reasonable excuse for delay or default” (CPLR 3012[d]).  “A defendant seeking to vacate a default in answering a complaint and to compel the plaintiff to accept an untimely answer pursuant to CPLR 3012(d) must provide a reasonable excuse for the default and demonstrate a potentially meritorious defense” (Pare v. Pare, 222 A.D.3d 765, 767, 202 N.Y.S.3d 363;  see Gambino v. Deutsche Bank Natl. Trust Co., 181 A.D.3d 565, 566, 117 N.Y.S.3d 594;  U.S. Bank N.A. v. Barr, 139 A.D.3d 937, 937, 30 N.Y.S.3d 576).  “The determination of what constitutes a reasonable excuse lies within the sound discretion of the Supreme Court” (Citimortgage, Inc. v. Kowalski, 130 A.D.3d 558, 558, 13 N.Y.S.3d 468;  see Goldstein v. Ilaz, 206 A.D.3d 976, 976, 168 N.Y.S.3d 879).  “This determination is based on numerous factors, ‘including the extent of the delay, whether there has been prejudice to the opposing party, whether there has been willfulness, and the strong public policy in favor of resolving cases on the merits’ ” (Belches v. City of New York, 191 A.D.3d 754, 754, 142 N.Y.S.3d 87, quoting Gomez v. Gomez–Trimarchi, 137 A.D.3d 972, 973, 27 N.Y.S.3d 229).

Here, the City demonstrated a reasonable excuse for its delay in answering the complaint (see Pare v. Pare, 222 A.D.3d at 767, 202 N.Y.S.3d 363;  Gambino v. Deutsche Bank Natl. Trust Co., 181 A.D.3d at 566, 117 N.Y.S.3d 594).  The City also set forth a potentially meritorious defense (see Belches v. City of New York, 191 A.D.3d at 754, 142 N.Y.S.3d 87;  Harris v. City of New York, 30 A.D.3d 461, 464, 817 N.Y.S.2d 99).  Consequently, in light of the evidence that the City's delay was not willful, the lack of prejudice to the plaintiffs resulting from the City's short delay in answering the complaint, the existence of a potentially meritorious defense, and the strong public policy favoring the resolution of cases on the merits, the Supreme Court providently exercised its discretion in denying that branch of the plaintiffs’ motion which was for leave to enter a default judgment against the City (see CPLR 3215[f]) and granting that branch of the City's cross-motion which was pursuant to CPLR 3012(d) to compel the plaintiffs to accept its late answer (see Pare v. Pare, 222 A.D.3d at 767, 202 N.Y.S.3d 363;  Belches v. City of New York, 191 A.D.3d at 754, 142 N.Y.S.3d 87).

The plaintiffs’ remaining contention is without merit.

DILLON, J.P., CHAMBERS, WARHIT and TAYLOR, JJ., concur.