MASONRY CORP v. MOSE

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Supreme Court, Appellate Division, Second Department, New York.

L & Z MASONRY CORP., Appellant, v. Kiriaki MOSE, et al., Respondents.

2018–01318

Decided: December 12, 2018

JOHN M. LEVENTHAL, J.P., LEONARD B. AUSTIN, JEFFREY A. COHEN, BETSY BARROS, LINDA CHRISTOPHER, JJ. Cohn & Spector, White Plains, N.Y. (Julius W. Cohn of counsel), for appellant. Speiser & Heinzmann, White Plains, N.Y. (Joseph C. Heinzmann, Jr., of counsel), for respondents.

DECISION & ORDER

In an action to foreclose a mechanic's lien, the plaintiff appeals from an order of the Supreme Court, Westchester County (Charles D. Wood, J.), dated January 18, 2018.  The order, insofar as appealed from, denied the plaintiff's motion for leave to enter a default judgment against the defendants upon their failure to appear or answer the complaint, and granted that branch of the defendants' cross application which was, in effect, to deem their late answer timely served nunc pro tunc.

ORDERED that on the Court's own motion, the appeal from so much of the order as granted that branch of the defendants' cross application which was, in effect, to deem their late answer timely served nunc pro tunc is deemed to be an application for leave to appeal from that portion of the order, and leave to appeal is granted (see CPLR 5701[c] ); and it is further,

ORDERED that the order is affirmed insofar as appealed from; and it is further,

ORDERED that one bill of costs is awarded to the defendants.

On October 21, 2016, the plaintiff filed a mechanic's lien against the defendants' property.  On February 8, 2017, the plaintiff commenced this action to foreclose the mechanic's lien.  On March 7, 2017, the defendants were served with the summons and complaint pursuant to CPLR 308(4).  By notice of ex parte motion dated October 26, 2017, the plaintiff moved for leave to enter a default judgment.  After the defendants, who proceeded pro se, served their answer on October 30, 2017, the plaintiff served the defendants with a copy of the motion dated October 26, 2017.  In opposition to the plaintiff's motion, the defendants made an informal cross application dated November 3, 2017, inter alia, in effect, to deem their late answer timely served nunc pro tunc.  The Supreme Court, among other things, denied the plaintiff's motion for leave to enter a default judgment against the defendants, and granted that branch of the defendants' cross application which was, in effect, to deem their late answer timely served nunc pro tunc.  The plaintiff appeals.

On a motion for leave to enter a default judgment against a defendant based on the failure to answer or appear, a plaintiff must submit proof of service of the summons and complaint, proof of the facts constituting the cause of action, and proof of the defendant's default (see CPLR 3215[f]; Liberty County Mut. v. Avenue I Med., P.C., 129 A.D.3d 783, 784–785; Atlantic Cas. Ins. Co. v. RJNJ Servs., Inc., 89 A.D.3d 649, 651, 932 N.Y.S.2d 109; Triangle Props. # 2, LLC v. Narang, 73 A.D.3d 1030, 1032, 903 N.Y.S.2d 424).  To demonstrate the facts constituting the cause of action, the plaintiff need only submit sufficient proof to enable a court to determine if the cause of action is viable (see Woodson v. Mendon Leasing Corp., 100 N.Y.2d 62, 70–71, 760 N.Y.S.2d 727, 790 N.E.2d 1156; Clarke v. Liberty Mut. Fire Ins. Co., 150 A.D.3d 1192, 1194, 55 N.Y.S.3d 400).  Here, the plaintiff satisfied all of the requirements for demonstrating its entitlement to enter a default judgment (see Jing Shan Chen v. R & K 51 Realty, Inc., 148 A.D.3d 689, 690, 48 N.Y.S.3d 474; Mercury Cas. Co. v. Surgical Ctr. at Milburn, LLC, 65 A.D.3d 1102, 885 N.Y.S.2d 218).

To successfully oppose the facially adequate motion for leave to enter a default judgment based on their failure to appear or timely serve an answer, the defendants were required to demonstrate a reasonable excuse for their default and the existence of a potentially meritorious defense to the action (see Clarke v. Liberty Mut. Fire Ins. Co., 150 A.D.3d at 1195, 55 N.Y.S.3d 400; Gershman v. Midtown Moving & Stor., Inc., 123 A.D.3d 974, 975, 999 N.Y.S.2d 485).  Similarly, to have their late answer deemed timely served nunc pro tunc, the defendants were required to provide a reasonable excuse for their delay in answering and demonstrate a potentially meritorious defense to the action (see CPLR 3012[d]; Clarke v. Liberty Mut. Fire Ins. Co., 150 A.D.3d at 1195, 55 N.Y.S.3d 400; Mannino Dev., Inc. v. Linares, 117 A.D.3d 995, 995, 986 N.Y.S.2d 578; Ryan v. Breezy Point Coop., Inc., 76 A.D.3d 523, 524, 904 N.Y.S.2d 910).

The defendants presented a reasonable excuse for their default and the subsequent delay in answering the complaint based upon the illness and death of the mother of the defendant Christopher Scott Mose, the relocation of his elderly father, and the mental health of the defendants' daughter (see Zaidi v. New York Bldg. Contrs., Ltd., 61 A.D.3d 747, 748, 877 N.Y.S.2d 381; Du Jour v. DeJean, 247 A.D.2d 370, 371, 668 N.Y.S.2d 639; Matter of McCaffrey v. McCaffrey, 210 A.D.2d 409, 620 N.Y.S.2d 102; Matter of State Div. of Human Rights v. North Broadway Holding Corp., 38 A.D.2d 856, 330 N.Y.S.2d 450).  Furthermore, the defendants' verified answer and supporting evidence were sufficient to demonstrate the existence of a potentially meritorious defense to the action (see CPLR 105[u]; Zaidi v. New York Bldg. Contrs., Ltd., 61 A.D.3d at 748, 877 N.Y.S.2d 381; Whitfield v. State of New York, 28 A.D.3d 541, 542, 814 N.Y.S.2d 185).

Under the circumstances presented here, the Supreme Court providently exercised its discretion in granting that branch of the defendants' cross application which was, in effect, to deem their late answer timely served nunc pro tunc, even in the absence of a formal notice of cross motion seeking that relief (see Gershman v. Midtown Moving & Stor., Inc., 123 A.D.3d at 976, 999 N.Y.S.2d 485; Fried v. Jacob Holding, Inc., 110 A.D.3d 56, 970 N.Y.S.2d 260), and in denying the plaintiff's motion for leave to enter a default judgment against the defendants.

LEVENTHAL, J.P., AUSTIN, COHEN, BARROS and CHRISTOPHER, JJ., concur.