RODRIGUEZ v. LLC (2025)

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant Spring Scaffolding, LLC, appeals from an order of the Supreme Court, Kings County (Sharon A. Bourne–Clarke, J.), dated October 5, 2023.  The order denied that defendant's motion pursuant to CPLR 5015(a) to vacate an order of the same court dated March 2, 2023, granting the plaintiff's unopposed motion for leave to enter a default judgment against it and for an inquest on the issue of damages, and for leave to file a late answer.

ORDERED that the order dated October 5, 2023, is affirmed, with costs.

On May 14, 2021, the plaintiff commenced this action to recover damages for personal injuries he allegedly sustained when he tripped and fell due to a defective sidewalk.  The defendant Spring Scaffolding, LLC (hereinafter the defendant), failed to appear or answer the complaint, and on June 14, 2022, the plaintiff moved for leave to enter a default judgment against the defendant and for an inquest on the issue of damages.  In an order dated March 2, 2023, the Supreme Court granted the plaintiff's motion.

On June 12, 2023, the defendant moved pursuant to CPLR 5015(a) to vacate the March 2, 2023 order and for leave to file a late answer.  In an order dated October 5, 2023, the Supreme Court denied the defendant's motion.  The defendant appeals.

“A defendant seeking to vacate a default in answering or appearing upon the grounds of excusable default pursuant to CPLR 5015(a)(1) must demonstrate a reasonable excuse for the default and a potentially meritorious defense to the action” (Bethpage Fed. Credit Union v. Grant, 178 A.D.3d 997, 999, 115 N.Y.S.3d 410).  “ ‘Where the claim is supported by a detailed and credible explanation of the default, the court may accept law office failure as a reasonable excuse’ ” (Cortazar v. Cojam Constr., Inc., 222 A.D.3d 713, 714, 202 N.Y.S.3d 346, quoting HSBC Bank USA, N.A. v. Hutchinson, 215 A.D.3d 645, 646, 187 N.Y.S.3d 275;  see CPLR 2005).

“Although the determination of what constitutes a reasonable excuse lies within the sound discretion of the motion court, the movant must provide a detailed and credible explanation for the purported law office failure, and where the record demonstrates a pattern of default or neglect, the default should be considered intentional and, therefore, not excusable, and may properly be imputed to the client” (Cortazar v. Cojam Constr., Inc., 222 A.D.3d at 714–715, 202 N.Y.S.3d 346 [internal quotation marks omitted];  see Zirrith v. Rego, 230 A.D.3d 626, 216 N.Y.S.3d 273).  Further, “law office failure should not be excused where a default results not from an isolated, inadvertent mistake, but from repeated neglect, or where allegations of law office failure are vague, conclusory, and unsubstantiated” (Beach 28 RE, LLC v. Somra, 216 A.D.3d 610, 612, 188 N.Y.S.3d 598 [internal quotation marks omitted]).

Here, the defendant failed to demonstrate a reasonable excuse for its default in answering the complaint or appearing in the action.  In support of its motion, inter alia, to vacate the March 2, 2023 order, the defendant submitted an affidavit of an employee of a separate entity that provided support services such as legal representation to the defendant but failed to provide an affidavit of its own employee to explain the circumstances surrounding the default (see HSBC Bank USA, N.A. v. Hutchinson, 215 A.D.3d 645, 187 N.Y.S.3d 275).  That individual's vague and conclusory assertion that her failure to make the file for this matter active caused the defendant's default was insufficient to demonstrate a reasonable excuse (see Funding NY, LLC v. 1237 Dean St. Corp., 227 A.D.3d 1050, 212 N.Y.S.3d 413;  Cortazar v. Cojam Constr., Inc., 222 A.D.3d 713, 202 N.Y.S.3d 346).  Rather, the defendant showed a pattern of willful delay and default in answering the complaint and responding to the plaintiff's default letter pursuant to CPLR 3215(g)(4)(i) and motion, among other things, for leave to enter a default judgment against the defendant (see Cortazar v. Cojam Constr., Inc., 222 A.D.3d 713, 202 N.Y.S.3d 346;  Thapt v. Lutheran Med. Ctr., 89 A.D.3d 837, 932 N.Y.S.2d 346).  Therefore, under the circumstances presented here, the defendant's excuse of law office failure did not constitute a reasonable excuse for its default, as the record showed a pattern of willful delay and neglect (see Beach 28 RE, LLC v. Somra, 216 A.D.3d 610, 188 N.Y.S.3d 598;  Thapt v. Lutheran Med. Ctr., 89 A.D.3d 837, 932 N.Y.S.2d 346;  Wells Fargo Bank, N.A. v. Cervini, 84 A.D.3d 789, 921 N.Y.S.2d 643).

In light of the foregoing, it is unnecessary to determine whether the defendant demonstrated the existence of a potentially meritorious defense (see Nico v. Olajitan, 229 A.D.3d 561, 214 N.Y.S.3d 774;  Ross v. Emefieh, 227 A.D.3d 739, 210 N.Y.S.3d 476).

The defendant's remaining contentions are without merit.

Accordingly, the Supreme Court properly denied the defendant's motion to vacate the March 2, 2023 order and for leave to file a late answer.

MILLER, J.P., FORD, LOVE and GOLIA, JJ., concur.