Recitation, as required by CPLR 2219 (a), of the papers considered on this motion: Papers Numbered Notice of Motion, Affirmation in Support & Exhibits 1-2 AMENDED1 DECISION & ORDER Upon the foregoing papers, plaintiff moves pursuant to CPLR 3404, 2004, 2005, and/or 5015 to vacate the order rendered on default denying plaintiff’s motion to strike defendant’s answer and for summary judgment.2 Plaintiff commenced the instant action seeking damages for, inter alia, breach of contract, on November 13, 2017. Defendant served an answer, asserting a counterclaim on or about May 10, 2018. The parties failed to appear for the Court’s dismissal calendar and the action was dismissed on September 13, 2019. Without moving to restore the case in the first instance, plaintiff moved on November 23, 2020 seeking to strike defendant’s answer and for summary judgment, but the motion was denied due to no appearance from either party on April 27, 2021. Initially the Court notes that “CPLR 3404 does not apply to the New York City Civil Court, the city courts outside of New York City, or the District Courts on Long Island” (Hon. Mark C. Dillon, Supplemental Practice Commentaries (2023), McKinneys Cons Laws of NY, Book 7B, C3404:1; see also Chavez v. 407 Seventh Ave. Corp., 39 AD3d 454, 454-56 [2d Dept 2007]). “An application to vacate an order of default may be granted if the movant shows that the default was excusable and that…the [motion] is meritorious” (Chevalier v. 368 E. 148th St. Assoc., LLC, 80 AD3d 411, 413-14 [1st Dept 2011]). “It is within the court’s sound discretion to determine whether the movant’s excuse for the default is sufficient” (id.). Here, plaintiff’s motion was filed on November 23, 2020 and counsel states that he appeared on the initial January 8, 2021 return date and the next date, at which point he was under the wrongful assumption that the Court marked the motion submitted without opposition: 12. I appeared Plaintiff on the January 8, 2021 return date of the Prior Motion, however Defendant’s counsel did not, at which time the Court adjourned the return date of the Prior Motion to March 2, 2021. 13. I appeared Plaintiff on the March 2, 2021 return date of the Prior Motion, and, again. Defendant’s counsel did not, and I was under the understanding that the Court was marking the Prior Motion submitted without opposition. 14. However, I have since come to learn that rather than mark the Prior Motion submitted without opposition, the Court adjourned the return date of the Prior Motion to April 27, 2021. 15. I was not aware of the new appearance and did not appear on the April 27, 2021 return date. 16. Due to the actions and misfiling of this matter by a former associate of the firm, there was a delay in the filing of the instant motion. (Schutzer aff dated January 11, 2024 at
