MELE v. OKUBO (2007)

In an action, inter alia, to impose a constructive trust, the defendant appeals from an order of the Supreme Court, Suffolk County (Costello, J.), dated June 20, 2005, which granted the plaintiff's motion for leave to enter judgment upon his failure to appear or answer the complaint and denied his cross motion to direct the plaintiff to accept late service of his verified answer and counterclaims.

ORDERED that the order is reversed, on the law, on the facts, and in the exercise of discretion, with costs, the plaintiff's motion for leave to enter judgment upon the defendant's failure to appear or answer the complaint is denied, the defendant's cross motion to direct the plaintiff to accept late service of his verified answer and counterclaims is granted, and the answer and counterclaims annexed to the defendant's cross motion papers are deemed served.

 A defendant seeking to vacate his or her default in appearing or answering the complaint must provide a reasonable excuse for the default and demonstrate a meritorious defense to the action (see CPLR 5015[a] [1];  Eugene Di Lorenzo, Inc. v. A.C. Dutton Lbr. Co., 67 N.Y.2d 138, 141, 501 N.Y.S.2d 8, 492 N.E.2d 116;  Lemberger v. Congregation Yetev Lev D'Satmar, 33 A.D.3d 671, 822 N.Y.S.2d 597).   In this case, the defendant provided a reasonable excuse for his failure to timely appear and answer the complaint based, in part, upon law office failure (see CPLR 2005).

 Additionally, the defendant established a meritorious defense.  “In determining whether the imposition of a constructive trust is warranted to prevent an unjust enrichment, a court looks to four factors:  the existence of a fiduciary or confidential relationship, a promise, a transfer in reliance thereon, and an unjust enrichment” (Artache v. Goldin, 133 A.D.2d 596, 600, 519 N.Y.S.2d 702;  see Sharp v. Kosmalski, 40 N.Y.2d 119, 121, 386 N.Y.S.2d 72, 351 N.E.2d 721).   Here, the defendant denied that he made any promises to the plaintiff concerning title in the subject premises.

Accordingly, in light of the strong public policy that actions be resolved on the their merits, the brief delay involved, the defendant's lack of willfulness, and the absence of prejudice to the plaintiff (see A & C Constr. of New York v. Flanagan, 34 A.D.3d 510, 823 N.Y.S.2d 682;  New York Univ. Hosp. Rusk Inst. v. Illinois Natl. Ins. Co., 31 A.D.3d 511, 818 N.Y.S.2d 585;  New York & Presbyt. Hosp. v. American Home Assur. Co., 28 A.D.3d 442, 443, 813 N.Y.S.2d 186), the Supreme Court should have denied the plaintiff's motion for leave to enter judgment upon the defendant's failure to appear or answer the complaint and granted the defendant's cross motion to direct the plaintiff to accept late service of his verified answer and counterclaims.