The following electronically-filed papers were read upon this motion: Notice of Motion/Order to Show Cause 3-8 Answering Papers 13-22 Reply 23 Briefs: Plaintiff’s/Petitioner’s Defendant’s/Respondent’s 16 Decision/Order Plaintiff moves this Court for an Order granting a default judgment against defendant on the issue of liability and setting this matter down for an inquest on plaintiff’s damages, costs, disbursements, and attorney’s fees (Motion Seq 001). Defendant opposes plaintiff’s motion and cross-moves for an extension of the time to serve an answer in this action and to compel plaintiff to accept the late answer already filed and served (Motion Sequence 002).1 Plaintiff opposes defendant’s cross-motion. This action apparently arises from construction work done at plaintiff’s Suffolk County residence that plaintiff alleges was performed in a defective and negligent manner, resulting in plaintiff having to incur substantial costs to redo, repair and replace defendant’s alleged defective work. Plaintiff claims that he has already been caused to suffer $85,772.43 in damages, and that he “continues to discover additional construction defects on a regular basis, and expects to incur substantial future costs to have the defective work remediated and the proper work completed.” Plaintiff’s fourth cause of action seeks to remove the lien placed on his property by defendant for non-payment. Plaintiff claims therein that defendant “was fully and fairly paid for all non-defective work provided.” Plaintiff commenced this action on February 27, 2019, when the summons and complaint were electronically filed. The affidavit of service was filed on March 6, 2019. According to the affidavit, service on defendant corporation was made on March 1, 2019, when the summons and complaint were served upon New York’s Secretary of State, pursuant to Business Corporation Law §306. On April 29, 2019, plaintiff mailed notice to defendant as required by CPLR §3215 (g)(4)(i). On April 30, 2019, at 10:49 a.m., plaintiff filed his motion for a default judgment (Sequence 001). On April 30, 2019, at 5:03 p.m., defendant filed its answer with counterclaims.2 The events that transpired between March 1, 2019 and April 30, 2019 are of great importance to the determination of the pending motion sequences, because they demonstrate to this Court that defendant did not willfully default, that there appears to be a potentially meritorious defense, and that the delay in answering is not so great as to have prejudiced plaintiff. CPLR §3012 (d) provides in relevant part that “the court may extend the time to appear or plead, or compel the acceptance of a pleading untimely served, upon such terms as may be just and upon a showing of reasonable excuse for delay or default.” A defendant who has failed to appear or answer the complaint must provide a reasonable excuse for the default and demonstrate a meritorious defense to the action to avoid the entering of a default judgment or to extend the time to answer (see Deutsche Bank National Trust Company v. Kuldip, 136 AD3d 969 [2d Dept 2016]; HSBC Bank USA, N.A. v. Lafazan, 115 AD3d 647 [2d Dept 2014]). Where this showing is made, the delay is relatively short, and there is a lack of evidence of a willful default and prejudice to the plaintiff, public policy favoring resolution of cases on their merits warrant a court’s provident exercise of its discretion in granting a defendant’s motion for an extension of time to answer/compel acceptance of an untimely answer and deny a plaintiff’s motion for a default judgment (Yuxi Li v. Caruso, 161 AD3d 1132 [2d Dept 2018]; Yongjie Xu v. JJW Enterprises, Inc., 149 AD3d 1146 [2d Dept 2017]; City Line Auto Mall, Inc. v. Citicorp Leasing, Inc., 45 AD3d 716 [2d Dept 2007]; Kaiser v. Delaney, 255 AD2d 362 [2d Dept 1998]). In connection with his application for a default judgment, plaintiff submits the complaint that is verified only by counsel; however, plaintiff also submits an affidavit in support of his motion that makes general allegations of negligent and defective workmanship, breach of an agreement to renovate the subject premises, and the alleged improper placement of a lien on plaintiff’s property by defendant. Based upon the plaintiff’s submissions, defendant’s time to answer expired on April 1, 2019. As noted herein, thirty days (30) after the statutory time to answer expired, defendant interposed its answer on April 30, 2019. Prior to the expiration of the time to answer, defendant’s counsel, Peter Sullivan, Esq., states that defendant contacted him on March 12, 2019 seeking advice on how to respond to the complaint. According to defense counsel, he discussed the venue of this action with defendant and referred defendant to counsel located in Riverhead, New York.3 Mr. Sullivan states that he believed that defendant had retained local counsel and that Sullivan’s firm was “appearing for the purpose of answering the Complaint.” Further according to Mr. Sullivan, during the first week of April, he “discovered the confusion and sought an extension of time to respond” from plaintiff’s counsel. Mr. Sullivan states that several messages were left for plaintiff’s counsel during the first week of April, and beginning on April 8, 2019, the firm sent emails to plaintiff’s counsel requesting an extension of the time to answer. Defendant has annexed the affidavit of the firm’s employee, Carla Williams, attesting to her leaving several phone messages for plaintiff’s counsel that went unanswered, and then emails to plaintiff’s counsel. Copies of the emails from defense counsel’s firm dated April 8, 2019, April 26, 2019, and April 30, 2019 are also annexed to the cross-motion. Defense counsel also mailed a formal letter request for an extension referencing the unsuccessful attempts to contact plaintiff’s counsel by email. The formal letter request is dated April 29, 2019. The only responsive email from plaintiff’s counsel is dated April 30, 2019, at 2:30 p.m. wherein plaintiff’s counsel states that he “called you in response to your April 8th email. At that time, we were willing to consent to a short extension. My call was never returned. We are no longer willing to consent. Alex [Kriegsman, Esq.].” By the time that email was sent by plaintiff’s counsel, plaintiff had already filed his motion for a default judgment at 10:49 a.m. on that same day. Mr. Sullivan confirms that on or about April 30, 2019, he and plaintiff’s counsel spoke on the phone, reviewed the history of this matter and again requested a thirty-day extension. Mr. Sullivan states that plaintiff’s counsel claimed that he had returned one of the telephone calls and left a message that was not returned. Because his call was not returned, plaintiff’s counsel stated that he would not grant an extension. Ms. Williams disputes in her affidavit ever having received a call or a telephone message from plaintiff’s counsel on April 8, 2019. CPLR §2005 permits a court, in its discretion, to consider law office failure in excusing delay or default resulting therefrom in connection with an application made pursuant to CPLR §3012 (d). Where there is miscommunication between a defendant and counsel, as in this matter there was apparently some miscommunication concerning the procurement of local counsel and the extent to which local counsel and Mr. Sullivan’s firm would each be involved in representing the defendant, a court may determine within its sound discretion that such “law office failure” constitutes a reasonable excuse for the delay (Madonna Management Services, Inc. v. Naghavi, 123 AD3d 986 [2d Dept 2014]). It does not escape the Court’s attention that defendant filed a lien against the subject premises prior to plaintiff’s commencement of this action; therefore, the dispute between the parties to this action began and was continuing before plaintiff decided to file suit. Furthermore, defendant sought advice from Mr. Sullivan twelve days after the summons and complaint were served upon the Secretary of State, evidencing an intent to defend against the allegations made in the complaint, and Mr. Sullivan discussed the venue of this action with the defendant. These actions, taken together with the undisputed repeated attempts to obtain an extension once counsel realized that an answer had not been interposed on defendant’s behalf, plus the formal letter of April 29, 2019 requesting an extension, demonstrate law office failure rather than some “transparent attempt to delay plaintiff’s efforts to vindicate his rights” (Reply Affirmation, 13). The fact that defendant filed its answer several hours after plaintiff filed his default motion is not, in this Court’s view, indicative of “the willful nature of its default” or that defendant “deliberately waited to file one until plaintiff moved for a default;” instead, it was not until April 30, 2019 that defense counsel received plaintiff’s response that an extension would not be granted. Accordingly, the Court finds defendant’s excuse for the delay in filing its answer to be a reasonable one. The affidavit of defendant’s president (David Silverstein) establishes a potentially meritorious defense. Not only did defendant file a lien on plaintiff’s property prior to the commencement of this action that arises directly from the construction work forming the basis of this action, but Mr. Silverstein disputes the general allegations made in the complaint, and he points out that plaintiff “has not seen fit to specify for me or this Court any of the specifics of his allegations.” Furthermore, Mr. Silverstein states that defendant has “been provided with copies of various invoices that we understand form the basis of Mr. Nahem’s complaint. We would note that the invoices all concern work he has had done on his house in 2016 and 2017. This is three years after we completed our work. Moreover, most of the invoices concern items that have nothing to do with the work of IPD. Lastly, many of the invoices reflect the failure of Mr. Nahem to maintain his equipment as we recommended.” Mr. Silverstein continues for approximately nineteen subparagraphs thereafter concerning why he believes four specific groups of invoices demonstrate that “Mr. Nahem’s claim is without any merit.” At this juncture, defendant has met the requirement of establishing a potentially meritorious defense in what appears to be a long-running dispute between plaintiff and defendant that will only be made clear after the completion of what promises to be extensive discovery. The Court does not find persuasive plaintiff’s conclusory statement that “[p]laintiff was prejudiced by the delay in pursuing its case, and by being put to the time and expense of preparing a motion for default.” This matter was commenced on February 27, 2019, and defendant’s delay in answering (thirty days) was short (Yuxi Li, supra [less than three-month time period after time to answer expired is excused]; Yongjie Xu, supra [five-and-one-half week delay excused]; Schonfeld v. Blue & White Food Products Corp., 29 AD3d 673 [2d Dept 2006] [two-and-one-half-month delay excused]; Kaiser, supra [two-and-one-half-month delay in serving answer excused]). The absence of willfulness on defendant’s part, of prejudice to the plaintiff by the short delay, and the strong public policy in favor of resolving cases on their merits, combined with defendant’s demonstration of a reasonable excuse for the delay in answering and a potentially meritorious defense, merits denial of plaintiff’s motion for a default judgment and the granting of defendant’s cross-motion to compel plaintiff to accept its late answer (Falla v. Keel Holdings, LLC, 50 AD3d 844 [2d Dept 2008]). Accordingly, it is the determination of this Court that plaintiff’s motion for a default judgment is denied (Motion Sequence 001) and that defendant’s motion for an extension/to compel plaintiff to accept the answer with counterclaims is granted (Motion Sequence 002). Plaintiff’s time to reply to the counterclaims shall commence when service of this Decision and Order, with Notice of Entry, is served upon plaintiff’s counsel via NYSCEF. The foregoing constitutes the Decision and Order of this Court. Dated: August 27, 2019 Riverhead, NY FINAL DISPOSITION [ ] NON-FINAL DISPOSITION [X]
