The following numbered papers were used on these motions: Plaintiff’s Papers NYSCEF Doc No. 6: notice of motion NYSCEF Doc No. 7: affidavit of Nicholas James in support NYSCEF Doc No. 8: affirmation of Da’ Tekena Barango-Tariah in support NYSCEF Doc No. 9: Exhibit A — summons and complaint NYSCEF Doc No. 10: Exhibit B — affidavit of service of summons and complaint on Mary Mola NYSCEF Doc No. 11: Request for Judicial Intervention NYSCEF Doc No. 22: reply affirmation of Da’ Tekena Barango-Tariah in support of motion and in opposition to cross-motion NYSCEF Doc No. 23: Exhibit C — bill of particulars NYSCEF Doc No. 24: reply affirmation of Da’ Tekena Barango-Tariah in support of motion and in opposition to cross-motion NYSCEF Doc No. 25: Exhibit C — bill of particulars Defendant Mary Mola’s Papers NYSCEF Doc No. 14: notice of cross-motion NYSCEF Doc No. 15: affirmation of Christopher R. Block in support of cross-motion and in opposition to motion NYSCEF Doc No. 16: Exhibit A — summons and complaint NYSCEF Doc No. 17: Exhibit B — affidavit of Mary Mola NYSCEF Doc No. 18: Exhibit C — email exchange NYSCEF Doc No. 19: Exhibit D — answer of Mary Mola NYSCEF Doc No. 20: Exhibit E — co-defendant’s correspondence to plaintiff’s counsel NYSCEF Doc No. 26: reply affirmation of Christopher R. Block in support of cross-motion Filed by Court NYSCEF Doc No. 21: Order, Hon. Saul Stein, J.S.C., July 30, 2024 DECISION AND ORDER Background Plaintiff Nicholas James seeks damages resulting from personal injuries sustained on May 20, 2022, while present in the first-floor apartment of defendant Mary Mola. He fell as a result of an electrical malfunction inside the apartment, which was in the building located at 26 St. James Place in Kings County. The building’s landlord, 26 St. James Villa LLC, is also named as a defendant in this action. (See NYSCEF Doc No. 9, complaint.) On May 20, 2022, plaintiff James came to Mola’s residence to provide physical training services. It is alleged that while inside the apartment, James fell as a consequence of an electrical malfunction, sustaining a herniation on his spine, a tear on his right shoulder, severe pain on his neck and right thumb, and distortion of his right hip. James alleges the injuries totally disabled him for ten days, from May 20- 30, 2022, and partially disabled him for four months, notably in his right hand, and that he felt symptoms from his injuries for approximately one year. James seeks damages in the amount of $1000.00 due to lost wages during the ten-day period of total disability, in which he was unable to provide physical training services, charged at $100.00 per hour. Plaintiff also seeks damages for his injuries. (See NYSCEF Doc No. 23, bill of particulars.) James alleges his injuries result from defendants’ negligence and that defendants were provided actual notice of the defective electrical system which resulted in said injuries. Plaintiff states actual notice was provided via oral notice to both defendants. (See id.) Procedural History Service of the summons and complaint was effectuated on May 25, 2023 (see NYSCEF Doc No. 10, aff of service). On March 27, 2024, plaintiff James filed a motion seeking a default judgment against defendant Mola (see NYSCEF Doc No. 6, notice of motion). Mola’s answer was served via NYSCEF on May 14, 2024 (see NYSCEF Doc No. 15, Block aff 14). On May 17, 2024, defendant Mola filed a cross-motion in opposition to the motion for a default judgment (see NYSCEF Doc No. 14, notice of cross-motion). On October 22, 2024, James filed opposition to the cross-motion (see NYSCEF Doc No. 22, Barango-Tariah reply aff). On October 24, 2024, Mola filed a reply in further support of her crossmotion (see NYSCEF Doc No. 26, Block reply aff). Issue Should defendant Mola’s failure to timely answer the complaint be excused and plaintiff James compelled to accept Mola’s answer as timely pursuant to CPLR 3012 (d)1 and 20042? Relief Sought & Contentions The initial motion in the case at bar seeks relief via a default judgment in favor of James (see CPLR 32153). James argues that he is entitled to such relief against Mola for failure to interpose a written answer to the complaint within thirty days4 (see NYSCEF Doc No. 7, James aff). The cross-motion of Mola argues that the motion for a default judgment should be denied due to the existence of a justifiable excuse and a meritorious defense. Mola also seeks to have her answer accepted as timely. Mola argues in her affidavit that there is a justifiable excuse. She asserts that she received the summons and complaint in or about May of 2023 (see NYSCEF Doc No. 17, Mola aff 4) and immediately contacted plaintiff’s attorney, Mr. Barango-Tariah, upon receipt of the documents. She further states that Barango-Tariah advised her that she did not need to appear or retain an attorney as codefendant St. James Villa would take the lead on defending the action (see id. 5). Mola followed this advice and thereafter received a notice of default against her in March of 2024. Upon receipt of the motion papers, Mola contacted her insurer and apprised them of the aforementioned circumstances. (See id. 6.) At such point, counsel was assigned to Mola, who requested that plaintiff withdraw the default motion and allow Mola to answer. The verified answer was entered on NYSCEF on May 14, 2024 (see NYSCEF Doc No. 15, Block aff 14), and the short delay in serving the answer did not prejudice James’ prosecution of the action (see id. 4, 5). Furthermore, Mola argues that there is a meritorious defense in that Mola did not own the premises where James was allegedly injured (see id. 11). Moreover, James fails to state a prima facie case of negligence as he fails to state whether Mola had notice of the defect or if a defect even existed prior to his injury (see id.
5, 22, 24). In opposition to the cross-motion, plaintiff’s counsel Barango-Tariah argues in his affirmation that he did not advise Mola but told her to contact her insurance company, and that she had oral notice of the defect prior to James’ injury (see NYSCEF Doc No. 22, Barango-Tariah reply aff
