THE OHIO CASUALTY INSURANCE COMPANY LIBERTY MUTUAL v. DBA SPECTRUM SIGNS (2026)

NYSCEF docs. 1-32 were read and considered in deciding this motion.

Relief Requested

The defendant moves pursuant to CPLR 5015 to vacate a clerk's judgment entered March 10, 2026, and for an extension of time to answer.

Background

The plaintiff commenced this action on September 8, 2025 (NYSCEF 1). According to an affidavit of service, a process server delivered duplicate copies of the commencement papers to the Secretary of State on September 16, 2025 (NYSCEF 3). On March 9, 2026, the plaintiff submitted a proposed default judgment to the Nassau County Clerk (NYSCEF 4). On March 10, 2026, the Nassau County Clerk entered a judgment in favor of the plaintiff and against the defendant in the total sum of $448,994.59 (NYSCEF 5).¹

Motion Sequence 003

The defendant moves pursuant to CPLR 5015 to vacate the clerk's judgment and for an extension of time to answer. In an attorney affirmation in support of the motion, counsel contends that the defendant has a reasonable excuse for its default, which is that counsel for the plaintiff and counsel for the defendant were engaged in settlement discussions, and counsel for the plaintiff never advised defense counsel that the plaintiff intended to seek a default judgment. Counsel further contends that the defendant has a meritorious defense, which is that it does not owe the alleged debts. Counsel also asserts that the defendant should be permitted an extension of time to answer. A proposed answer is annexed to the defendant's motion papers.

In an attorney affirmation in opposition, counsel for the plaintiff contends that the defendant has not demonstrated a reasonable excuse for its default and has not refuted service. Counsel also asserts that the defendant's claim of law office failure is unsubstantiated. Counsel asserts that the defendant never requested an extension of time to answer. Counsel further contends that the defendant has failed to present a meritorious defense, as the assertion that the debts are not owed is conclusory and unsubstantiated.

Discussion

A defendant seeking to vacate a default in appearing or answering pursuant to CPLR 5015(a)(1) must demonstrate both a reasonable excuse for the default and a potentially meritorious defense to the action (see Sussman v Jo-Sta Realty Corp., 99 AD3d 787, 788 [2d Dept 2012]). Here, the defendant failed to establish a reasonable excuse for its default (see Wells Fargo Bank, NA v Stewart, 229 AD3d 584, 585 [2d Dept 2026]). Since the defendant failed to establish a reasonable excuse for its default, it is unnecessary to consider whether the defendant established a potentially meritorious defense to the action (see id. at 585-586).

However, the Nassau County Clerk did not have the authority to enter a judgment in the plaintiff's favor since the plaintiff's alleged damages do not constitute a "sum certain" within the meaning of CPLR 3215(a) (see Freeport Plaza Realty, LLC v Freeport Moon, Inc., 205 AD3d 685, 687 [2d Dept 2022]; Barnett v Diamond Fin. Co., Inc., 202 AD3d 651, 653 [2d Dept 2022]; HSBC Bank USA, N.A. v Wielgus, 131 AD3d 510, 512 [2d Dept 2015]; Vinny Petulla Contr. Corp. v Ranieri, 94 AD3d 751, 751 [2d Dept 2012]; see generally Reynolds Secur., Inc v Underwriters Bank & Trust Co., 44 NY2d 568, 572-573 [1978]). Accordingly, the clerk's judgment should be vacated (see Vinny Petulla Contr. Corp. v Ranieri, 94 AD3d at 751; Zeccola & Selinger, LLC v Horowitz, 88 AD3d 992, 993 [2d Dept 2011]; Congregation Chaim Barucha v Friedman, 62 AD3d 933, 933-934 [2d Dept 2009]; Verde Elec. Corp. v Fed. Ins. Co., 50 AD3d 672, 672 [2d Dept 2008]; Woodward v Eighmie Moving & Storage, Inc., 151 AD2d 892, 893 [3d Dept 1989]; see also Darling v Fernette, 234 AD3d 1230, 1232 n 2 [3d Dept 2025]).

The defendant's failure to establish a reasonable excuse for its default forecloses any remedy under CPLR 3012(d) and, therefore, that branch of the defendant's motion which is for an extension of time to answer should be denied (see Stephan B. Gleich & Assoc. v Gritsipis, 87 AD3d 216, 226 [2d Dept 2011]). The plaintiff's failure to file proof of compliance with CPLR 3215(g)(4) does not require a contrary result (see Gourvitch v 92nd & 3rd Rest Corp., 146 AD3d 431 [1st Dept 2017]; Vengrenyuk v Exxonmobil Oil Corp., 144 AD3d 670, 672 [2d Dept 2016]; Hamilton Pub. Relations v Scientivity, LLC, 129 AD3d 1025, 1026 [2d Dept 2015]).

In light of the foregoing, "[t]he only remaining action to be undertaken beyond the vacatur of the clerk's judgment is the conduct of a damages inquest" (Stephan B. Gleich & Assoc. v Gritsipis, 87 AD3d at 225; see Barnett v Diamond Fin. Co., Inc., 202 AD3d 651, 653 [2d Dept 2022]).

Conclusion

Based on the foregoing, it is hereby

ORDERED that the branch of the defendant's motion which is pursuant to CPLR 5015 to vacate the clerk's judgment entered March 10, 2026, is GRANTED; and it is further,

ORDERED that the branch of the defendant's motion which is for an extension of time to answer is DENIED; and it is further,

ORDERED that an inquest on the issue of damages shall be held on Wednesday, October 21, 2026, at 10:00 a.m. The plaintiff shall file and serve a note of issue, together with a copy of this order, on all parties and shall serve copies of same, together with receipt of payment, upon the Calendar Clerk of this Court within 30 days after the date of this decision and order. The failure to file a note of issue or appear as directed may be deemed an abandonment of the rights giving rise to the hearing.

This constitutes the decision and order of this Court.

Dated: September 10, 2026

Mineola, NY

E N T E R :

HON. SARIKA KAPOOR, A.J.S.C.

FOOTNOTES

1.   There is no indication in NYSCEF that the plaintiff complied with the additional mailing requirements of CPLR 3215(g)(4) prior to seeking a default judgment.

Sarika Kapoor, J.