AYRES MEMORIAL ANIMAL SHELTER INC v. MONTGOMERY COUNTY SOCIETY FOR PREVENTION OF CRUELTY TO ANIMALS (2005)

Appeal from an order and amended order of the Supreme Court (Sise, J.), entered November 26, 2003 and December 3, 2003 in Montgomery County, which, inter alia, granted defendant's motion to vacate a default judgment entered against it.

Upon defendant's failure to timely answer the complaint, plaintiff applied pursuant to CPLR 3215(a) to the County Clerk for a default judgment in the amount of $78,759.66, which was entered by the County Clerk.   Less than one month later, defendant moved by order to show cause for an order permitting defendant to, among other things, open the default judgment and serve an answer to the complaint.   Supreme Court granted all of the relief sought by defendant.   Plaintiff appeals, and we affirm.

 In this action, plaintiff is seeking reimbursement from defendant for the cost of boarding certain domestic animals for a significant period of time.   The complaint sounds in quantum meruit (see Precision Founds. v. Ives, 4 A.D.3d 589, 591, 772 N.Y.S.2d 116 [2004] );  clearly it is not a claim “for a sum certain or for a sum which can by computation be made certain” (CPLR 3215[a];  see Reynolds Sec. v. Underwriters Bank & Trust Co., 44 N.Y.2d 568, 572, 406 N.Y.S.2d 743, 378 N.E.2d 106 [1978];  General Elec. Tech. Servs. Co. v. Perez, 156 A.D.2d 781, 784, 549 N.Y.S.2d 203 [1989] ).   Thus, the County Clerk lacked authority to enter the default judgment (see Action Lawn & Landscaping v. East Glenville Fire Dist., 254 A.D.2d 585, 587, 678 N.Y.S.2d 826 [1998];  Jannon v. Van Buskirk, 227 A.D.2d 844, 642 N.Y.S.2d 402 [1996];  Tutera v. Nagel, 160 A.D.2d 1058, 553 N.Y.S.2d 542 [1990] ).   Given that the default judgment was a nullity, the motion to vacate it did not require defendant to set forth a reasonable excuse for the default or a meritorious defense to the action (see Gibbs v. Hoot Owl Sportsman's Club, 257 A.D.2d 942, 944, 684 N.Y.S.2d 359 [1999];  White v. Weiler, 255 A.D.2d 952, 680 N.Y.S.2d 784 [1998];  Tutera v. Nagel, supra;  see also CPLR 5015[a][4] ).   Directing a hearing on damages without granting defendant leave to answer may have been proper if plaintiff had sought a default judgment from Supreme Court (see CPLR 3215[a], [b];  see also Gibbs v. Hoot Owl Sportsman's Club, supra ), but where, as here, the default judgment was improperly obtained through the County Clerk, Supreme Court properly vacated the default judgment in its entirety (see Gibbs v. Hoot Owl Sportsman's Club, supra;  Action Lawn & Landscaping v. East Glenville Fire Dist., supra at 587, 678 N.Y.S.2d 826;  Jannon v. Van Buskirk, supra at 844-845, 642 N.Y.S.2d 402).

 Nor did Supreme Court abuse its discretion in permitting defendant to serve a late answer to the complaint.   Defendant's submission in support of the order to show cause established that defendant gave the summons and complaint to its insurance agent upon receipt thereof, and defendant's default in answering was attributable to the insurance company's failure to properly obtain counsel, a reasonable excuse for the delay in this matter (see CPLR 3012 [d];  Winney v. County of Saratoga, 252 A.D.2d 882, 884, 676 N.Y.S.2d 356 [1998];  Lucas v. United Helpers Cedars Nursing Home, 239 A.D.2d 853, 657 N.Y.S.2d 519 [1997];  see also Cerrone v. Fasulo, 245 A.D.2d 793, 794, 665 N.Y.S.2d 761 [1997];  cf. Pagano v. U.W. Marx, Inc., 223 A.D.2d 817, 818, 636 N.Y.S.2d 188 [1996] ).   We note that plaintiff failed to show either that the default was willful or that it was prejudiced thereby and CPLR 3012(d) does not require a showing of merit as a precondition to obtaining relief where, as here, the delay is of relatively short duration (see Aabel v. Town of Poughkeepsie, 301 A.D.2d 739, 740, 753 N.Y.S.2d 201 [2003] ).

ORDERED that the order and amended order are affirmed, with costs.

MERCURE, J.P.

CREW III, MUGGLIN, LAHTINEN and KANE, JJ., concur.