Camsan, Inc., Plaintiff, v. OPRA III LLC HUDSON MERIDIAN CONSTRUCTION GROUP LLC ATLANTIC SPECIALTY INSURANCE COMPANY SURFACES CO JACK LOCONSOLO CO INC DBA LOCONSOLO PAINTS VALEX ENTERPRISES INC ARCHMILLS LLC UNIQUE MARBLE GRANITE ESSEX DOORS AND GLASS PC RICHARD SONS NORBERTO CONSTRUCTION INC COLONY HARDWARE CORP PLATEAU PAINTING CO INC BUILDER SERVICES GROUP INC AND RXR 120 OPR LENDER LLC (2025)

The following papers numbered 1 to 8 were read on these motions:

Papers Numbered

Amended Notice of Motion, Affidavit, Affirmation and Exhibits 1

Memorandum of Law 2

Notice of Cross-Motion and Affirmation 3

Memorandum of Law 4

Affidavit, Affirmation and Exhibits in Reply 5

Reply Affirmation 6

There are two motions before the Court involving various mechanic's liens arising out of an enormous construction project in Rye. The first motion, filed by J. Suss Industries, Inc. ("J. Suss"), seeks a default judgment against OPRA III LLC ("OPRA"). The second motion, filed by OPRA, seeks (1) permission to file a late response to the cross-claims of J. Suss; and (2) to dismiss those cross-claims.

J. Suss filed its answer with cross-claims and served it via NYSCEF. Although four attorneys at the firm representing OPRA were registered with NYSCEF, none filed an answer thereto. OPRA had, however, previously filed an answer in 2022 to all of the cross-claims that had then been asserted. According to OPRA, counsel simply failed to notice that J. Suss' answer included additional cross-claims.

OPRA states, and J. Suss fails to rebut, that this failure occurred during the period of time in which the parties were intensely engaged in a very complex mediation in this very complex matter. Indeed, it is the Court's understanding that while each subcontractor was only involved in certain mediation sessions pertaining to that subcontractor, OPRA was one of the entities that was involved in most, if not all, of the mediation sessions (and the endless discussions prior to the mediation sessions). OPRA asserts that its "reasonable excuse" for not answering was law office failure, rather than an intention to abandon the litigation.¹ As the Second Department has explained, "The Supreme Court has the discretion to accept law office failure as a reasonable excuse (see CPLR 2005), where the claim of law office failure is supported by a 'detailed and credible' explanation of the default." Kohn v. Kohn, 86 AD3d 630, 630, 928 N.Y.S.2d 55, 56 (2d Dept. 2011).

While OPRA's explanation of the default is not as detailed as it could be, the Court finds that given the history of these matters; the number of conferences the Court has held with the parties; the number of times that the Court spoke to the mediator about the mediations; OPRA's obvious intent not to abandon the litigation; and the "strong public policy in favor of resolving cases on the merits," Melendez v. John P. Picone, Inc., 215 AD3d 665, 666, 187 N.Y.S.3d 82, 84 (2d Dept. 2023), OPRA's default in failing to answer J. Suss' cross-claims should be excused. J. Suss' motion is denied in its entirety, and OPRA's motion is granted to the extent that the Court grants OPRA permission to file a late answer.

As for OPRA's motion to dismiss the cross-claims on the basis that "New York Law does not recognize a claim for quasi-contract relief where, as here, there is a valid and enforceable contract concerning the subject matter at issue," the Court denies this motion. J. Suss contends that it had contact with a principal of OPRA, indicating that OPRA would pay J. Suss the balance due directly. The Court will allow discovery to determine whether this is a valid quasi-contractual claim or not.

The foregoing constitutes the decision and order of the Court.²

Dated: April 15, 2025

White Plains, New York

HON. LINDA S. JAMIESON

Justice of the Supreme Court

FOOTNOTES

1.   OPRA also asserts that J. Suss should have sent it an additional copy of the summons as required by CPLR § 3215(g)(4), and on that basis alone, the motion is improper. Curiously, J. Suss fails to respond to this argument. This is especially odd because applicable Second Department caselaw finds that this requirement does not apply to LLCs, but only, as the statute says, to a "domestic or authorized foreign corporation which has been served pursuant to" Bus. Corp. Law § 306(b), which OPRA is not. Mitchell v. Kingsbrook Jewish Med. Ctr., 210 AD3d 887, 889, 179 N.Y.S.3d 109, 110—11 (2d Dept. 2022) ("Contrary to the Supreme Court's determination, the plaintiff was not required to demonstrate compliance with the additional notice requirement of CPLR 3215(g)(4). By its express terms, the notice requirement is limited to situations where a default judgment is sought against a 'domestic or authorized foreign corporation' which has been served pursuant to Business Corporation Law § 306(b), and does not pertain to a limited liability company.")

2.   All other arguments raised, and all materials submitted by the parties in connection therewith, have been considered by this Court, notwithstanding the specific absence of reference thereto.

Linda S. Jamieson, J.