PONCE v. ORTIZ (2026)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Anne Swern, J.), dated August 8, 2024.  The order, insofar as appealed from, denied the plaintiff's motion for leave to enter a default judgment against the defendant Roland Ortiz and granted the cross-motion of the defendant Roland Ortiz pursuant to CPLR 2004 and 3012(d) to compel the plaintiff to accept his late answer.

ORDERED that the order is reversed insofar as appealed from, on the law and in the exercise of discretion, with costs, the plaintiff's motion for leave to enter a default judgment against the defendant Roland Ortiz is granted, and the cross-motion of the defendant Roland Ortiz pursuant to CPLR 2004 and 3012(d) to compel the plaintiff to accept his late answer is denied.

The plaintiff commenced this action to recover damages for personal injuries he alleges that he sustained when he was struck by a motor vehicle owned by the defendant Roland Ortiz while lawfully crossing the street.  An affidavit of service reflects that service upon Ortiz was complete on June 17, 2022.  On August 31, 2022, Ortiz interposed an answer, and on September 1, 2022, the plaintiff rejected Ortiz's answer as untimely.

On January 24, 2023, the plaintiff moved for leave to enter a default judgment against Ortiz.  On October 11, 2023, Ortiz opposed the plaintiff's motion and cross-moved pursuant to CPLR 2004 and 3012(d) to compel the plaintiff to accept his late answer.  By order dated August 8, 2024, the Supreme Court, inter alia, denied the plaintiff's motion and granted Ortiz's cross-motion.  The plaintiff appeals.

“On a motion for leave to enter a default judgment, an applicant must submit proof of service of the summons and complaint, proof of the facts constituting the cause of action, and proof of the default” (Barbetta v NY Auto Find, Inc., 221 AD3d 851, 853;  see CPLR 3215[f];  B & H Flooring, LLC v Folger, 228 AD3d 809, 813).  “To successfully oppose a facially adequate motion for leave to enter a default judgment ․ on the failure to appear or timely serve an answer, a defendant must demonstrate a reasonable excuse for the delay and a potentially meritorious defense to the action” (Nowakowski v Stages, 179 AD3d 822, 823 [internal quotation marks omitted];  see Rosenzweig v Gubner, 194 AD3d 1086, 1089).  Likewise, to compel a plaintiff to accept a late answer requires the movant to demonstrate both a reasonable excuse for the default and the existence of a potentially meritorious defense (see Raphael v City of Peekskill, 237 AD3d 1232).  Where a defendant fails to demonstrate a reasonable excuse for its default, the court need not consider whether the defendant demonstrated the existence of a potentially meritorious defense (see Trokaik Realty, Inc. v HP Yuco, HDFC, Inc., 188 AD3d 1281).

Here, in opposition to the plaintiff's facially adequate motion for leave to enter a default judgment, Ortiz failed to demonstrate a reasonable excuse for his default in failing to timely appear or answer the complaint (see Goldstein v Ilaz, 206 AD3d 976;  Rosenzweig v Gubner, 194 AD3d at 1089).  Further, Ortiz provided no reasonable excuse for his more than one-year delay in moving to compel the plaintiff to accept his late answer after it was rejected by the plaintiff as untimely (see Sargsyan v Kaieteur Constr., Inc., 171 AD3d 826, 827).  In view of the absence of a reasonable excuse, it is unnecessary to consider whether Ortiz demonstrated the existence of a potentially meritorious defense to the action (see Goldstein v Ilaz, 206 AD3d at 977;  Sargsyan v Kaieteur Constr., Inc., 171 AD3d at 827;  Deutsche Bank Natl. Trust Co. v Gutierrez, 102 AD3d 825, 825).  Further, as Ortiz failed to establish a reasonable excuse for his default, he was not entitled to an extension of time to answer (see Rosenzweig v Gubner, 194 AD3d at 1089;  Cumanet, LLC v Murad, 188 AD3d 1149, 1153).

Ortiz's remaining contention is not properly before this Court.

Accordingly, the Supreme Court improvidently exercised its discretion in granting Ortiz's cross-motion pursuant to CPLR 2004 and 3012(d) to compel the plaintiff to accept his late answer and in denying the plaintiff's motion for leave to enter a default judgment against Ortiz.

BARROS, J.P., CHAMBERS, WAN and QUIRK, JJ., concur.